Petitioners Brief — Russoniello v. Olagues

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Supreme Court, U.S,

(6) FILED

No. 86-1217 WL 2 3987

Iu the Supreme Court of the United States _—_

OCTOBER TERM, 1987

JOSEPH P. RUSSONIELLO, ET AL., PETITIONERS

JOSE J. OLAGUES, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE PETITIONERS

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

GLEN D. NAGER

Assistant to the Solicitor General

MICHAEL JAY SINGER

JAY S. BYBEE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the termination of the investigation in

this case for lack of prosecutorial merit renders moot re-

spondents’ prayers for injunctive and declaratory relief.

2. Whether a federal court exceeds its constitutional

authority under Article III when, in the absence of any

legislatively created cause-of-action and standards, it

entertains a pre-indictment challenge to the manner and

scope of the noncoercive investigative activities of a

United States Attorney.

3. Whether, assuming that Article III in some cir-

cumstances allows for pre-indictment judicial review of

the manner and scope of noncoercive investigatory activi-

ties by a United States Attorney, a federal court may

enjoin or declare unconstitutional such activities when

those activities were not taken in bad faith or for pur-

poses of harassment, do not violate any clearly established

rights, and have not been shown to be devoid of legiti-

mate investigatory purpose.

(1)

PARTIES TO THE PROCEEDING

Petitioners are Joseph P. Russoniello, the United States

Attorney for the Northern District of California, and

David Ilchert, the District Director for the United States

Immigration and Naturalization Service for the San

Francisco Bay Area. Louis Bergna, James D. Boitano,

Marvin Church, William D. Curtis, Arthur Donner, Bar-

bara Greenslake, Eve Lewis, George A. Mann, John

Meehan, Richard Neal, William A. O’Malley, Jay Patter-

son, James Riggs, Arlo Smith, Keith Sorenson, Gene L.

Tunney, Lon Underwood, and Ross Underwood are de-

fendants with petitioners in the proceedings below.

Respondents are Jose J. Olagues, the Chinese for Af-

firmative Action, the Hispanic Coalition for Human

Rights, and the San Francisco Latino Voter Registration

Education Project.

TABLE OF CONTENTS

Page

TEE aT SAE EM ERE 1

EEE Oe ee Re ee 1

Constitutional and statutory provisions involved ............. 2

EN BE OE Ra NE Tee a 3

Gumeeary of the argument. ......:......................................... 14

Argument:

I. The termination of this voter registration fraud

investigation for lack of prosecutorial merit

moots respondents’ prayers for injunctive and

I i ican tilemeeineaonniaiiike 16

II. The judiciary exceeds its constitutional author-

ity under Article III when, in the absence of

legislation creating a cause of action and enun-

ciating standards by which the government’s

conduct is to be judged, it entertains a pre

indictment challenge to the noncoercive investi-

gative activities of a United States Attorney...... 22

A. Article III of the Constitution respects the

separation of powers between the executive

emg tage: brancnes ....................................... 23

B. Absent legislation creating judicially en-

forceable rights and providing applicable

standards, the Judicial Branch exceeds its

constitutional authority when it supervises

or reviews the noncoercive information-

gathering and deliberative activities of the

Memeemiawe BYanen ............................................ 26

C. The government officials involved in this in-

vestigation did not subject respondents to

any coercive government action -.....0....00000..... 35

(mT)

Argument—Continued : Page

III. Even if judicial review of noncoercive investiga-

tive activities is permissible in certain circum-

stances, equitable relief is not available where,

as here, those investigative activities were not

conducted in bad faith or for the purpose of

harassment, do not violate any clearly established

rights, and are not devoid of legitimate investi-

STE. IEEE sehiduisestiisinsanitahsadabbotuaceseieinisansaeee 37

EER EEN, SERIE Pot ONCE rer = NR ONS 8 Ee YR 46

TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136

Lh ¢ Re eee EES 25

Allen v. Wright, 468 U.S. 787 (1984) ...... 23, 24, 25, 26, 40

Amoco Production Co. Vv. Gambell, No. 85-1239

(Mar. 24, 1987) 43

Ashcroft v. Mattis, 481 U.S. 171 (1977) .-................ 19

Baker v. Carr, 369 U.S. 186 (1962) .......................... 25, 31

Barenblatt v. United States, 360 U.S. 109 (1959)... 25

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ........... 28

Blackledge v. Perry, 417 U.S. 21 (1974) ......-00-0000..... 28

Blair v. United States, 250 U.S. 273 (1919) -............ 33, 35

Bordenkircher v. Hayes, 434 U.S. 357 (1978) ........ 26, 28

Bowsher v. Synar, No. 85-1877 (July 7, 1986) -..... 23

Boyle v. Landry, 401 U.S. 77 (1971) ..............--.....---- 42

Branzburg V. Hayes, 408 U.S. 665 (1972) -............. 28, 33

Buckley v. Valeo, 424 U.S. 1 (1976) ......................... 23

Burke v. Barnes, Ne. 85-781 (Jan. 14, 1987) -.......... 24

Butz v. Economou, 438 U.S. 478 (1978) ................... 33

City of Los Angeles Vv. Lyons, 461 U.S. 95 (1983) .... 19, 20,

21, 38, 39, 40, 41, 42, 43

Cobbledick v. United States, 309 U.S. 323 (1940)... 35

Coleman V. Miller, 307 U.S. 433 (1939) ............00.0..... 25

Community for Creative Non-Violence v. Pierce,

‘i; SB» GF). Boi iets A — | Reaeegpuenenueeeme 27

Confiscation Cases, 74 U.S. (7 Wall.) 454 (1868).. 27

Costello v. United States, 350 U.S. 359 (1956) ........ 32

Cases—Continued : Page

County of Los Angeles v. Davis, 440 U.S. 625

(1979) ........ EIS Ee ae Ne ED 2 Ck 17, 18, 21

Davis Vv. Ichord, 442 F.2d 1207 (D.C. Cir. 1970)...... 42

Defunis v. Odegaard, 416 U.S. 312 (1974) ............... 17, 20

Dombrowski v. Pfister, 380 U.S. 479 (1965) -........ 38

Doran vy. Salem Inn, Inc., 422 U.S. 922 (1975) ........ 44

Douglas v. City of Jeannette, 319 U.S. 157 (1943).. 42

Flast v. Cohen, 392 U.S. 83 (1968) ........................... 24

Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.

1979), cert. denied, 453 U.S. 913 (1981) ............ 27

FTC v. Standard Oil Co., 449 U.S. 282 (1980) ....29, 30, 32,

34, 43

Golden v. Zwickler, 394 U.S. 103 (1969) ................... 17

Goldwater v. Carter, 444 U.S. 996 (1979) ................. 25

Gordon Vv. United States, 117 U.S. 697 (1864) ........ 24

Grand Jury Subpoena to Central States, In re, 225

F. Supp. 923 (N.D. Ill. 1964) ....... ERT EOI 40

Hale v. Henkel, 201 U.S. 48 (1906) -......................... 33

Hall v. Beals, 396 U.S. 45 (1969) ............................. 24

Heckler v. Chaney, 470 U.S. 821 (1985) ......... 29, 31, 35, 40

Hoffman v. United States, 341 U.S. 479 (1951)...... 33

Hon Keung Kung v. INS, 356 F. Supp. 571 (£.D.

RRR a tol ae aa» Wile rae 44

Humphrey’s Executor v. United States, 295 U.S.

OR So deschisthss cits isdinsiiiniin therm acciadiieabianithiadinbabea 23

Illinois Elections Bd. v. Socialist Workers Party,

PY gs 2 | Se ere 20

Imbler v. Pachtman, 424 U.S. 409 (1976) ....... 27, 32, 33, 34

INS v. Chadha, 462 U.S. 919 (19838) ......................... 23

Iron Arrow Honor Society v. Heckler, 464 U.S. 67

CRI <icanniehescenesatrnnentinitiniaiansciiatie tinal ie uicanecaieiaastae 17, 18

Jett v. Castaneda, 578 F.2d 842 (9th Cir. 1978) ..10, 28, 40

Kugler v. Helfant, 421 U.S. 117 (1975) .................... 38, 44

Laird v. Tatum, 408 U.S. 1 (1972) ............ ....-29, 80, 35, 42

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

DED . ccs ine ccabineccetna ceehiah atiicenniliaiacapaisitaitainateaiiiaia 28, 40

Levitt, Ex parte, 302 U.S. 633 (19387) ....................... 29

Linda R.S. v. Richard D., 410 U.S. 614 (1978) ........ 24

MacDonald, Sommer & Frates v. County of Yolo,

No. 84-2015 (June 25, 1986) ...................-.-....0--2000-0 25, 30

Malley v. Briggs, No. 84-1586 (Mar. 5, 1986)........ 34

Cases—Continued : Page

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766 (1983) ..........----------::eeeeeees 42

Murphy v. Hunt, 455 U.S. 478 (1982) ............---.---.-- 20, 21

Muskrat v. United States, 219 U.S. 346 (1911)........ 24

Nathan v. Smith, 737 F.2d 1069 (D.C. Cir. 1984).... 27

Nebraska Press Ass’n v. Stuart, 427 U.S. 539

i asieaca Ak scsenincttcccieetidenetieinlinimptipiannenbnntonsovoiasespsoe~ 20

North v. Walsh, 656 F. Supp. 414 (D.D.C. 1987),

appeal pending, No. 87-5058 (D.C. Cir.) ............. 40-41

Northern Pipeline Co. v. Marathon Pipe Line Co.,

SD UE, a trhscki hc cpeeneri ieee ese sccsivnsn 23

O’ Donoghue v. United States, 289 U.S. 516 ( 1933). 23

Ohio Civil Rights Comm’n v. Dayton Christian

Schools, Inc., No. 85-488 (June 27, 1986) ............. 39

Oklahoma Press Publishing Co. v. Walling, 327 U.S. |

TD. CTY acces ccncacetiptcnpeeerncieheevenbennetccartoteasscce- 28

Osborn Vv. United States Bank, 22 U.S. (9 Wheat.)

FU CD sca ncinseeecsensnceinariesitaiiipcranantnintiictiinipasmsitnnn 24

O’Shea Vv. Littleton, 414 U.S. 488 (1974) ...... 17, 19, 38, 39,

41, 42

Oyler v. Boles, 8368 U.S. 448 (1962) ............---..-.--.----- 31 |

Pennzoil Co. v. Texaco, Inc., No. 85-1798 (Apr. 6,

OY ise tains sateecentonnneypiieimcadpapehiennentnitenin 37-38, 40

Perez v. Ledesma, 401 U.S. 82 (1971) STEERER. Some 38

Petroleum Exploration, Inc. v. Public Service

Comm’n, 304 U.S. 209 (1988) ................---:ccseseeeeee- 34

Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark.),

ug Me gle Se Os | ean 40

Powell v. McCormack, 395 U.S. 486 (1969) ............. 16, 25

Reporters Committee for Freedom of the Press v.

American Telephone & Telegraph, 593 F.2d 1030

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

Es. 5 aN apace SEER Sy ep tA Se ROR re 27-28, 40

Rizzo v Goode, 423 U.S. 362 (1976) ....................-..-- 88, 39

Roe v. »'ade, 410 U.S. 118 (1978) ................----e000000 20

Roviaro v. United States, 353 U.S. 53 (1957) ........... 82

Samuels v. Mackell, 401 U.S. 66 (1971) ................... 44

Socialist Workers Party v. Attorney General, 510

F.2d 253 (2d Cir.), motion for stay denied, 419

CE, Te Ct hisechisngsnccps coacastiisecsccsatipaaienentbonigne 28

VII

Cases—-Continued : Page

Steffel v. Thompson, 415 U.S. 452 (1974) ..00000....... 42, 44-45

Trainor Vv. Hernandez, 431 U.S. 484 (1977) ............. 38

United States v. Batchelder, 442 U.S. 114 (1979)... 26

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

CORFE eiccgachicacesicciciasucihiietadtbadeathttialReinicibestiineincen 44

United States v. Calandra, 414 U. S. 338 (1974)...... 32

United States v. Dionisio, 410 U.S. 1 (1978) ........... 82, 33

United States v. Goodwin, 457 U.S. 368 (1982) ..27, 31, 33

United States v. Lovasco, 431 U.S. 783 (1977) ........ 33

United States v. Mara, 410 U.S. 19 (1978) .............. 33

United States v. Marion, 404 U.S. 307 (1971)........ 35

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

5 BPA nies MUI SPA AOE Oe 22

United States v. Nixon, 418 U.S. 683 (| ae 26-27

United States v. Richardson, 418 U.S. 166 (1974).. 24

United States v. Sells Engineering, Inc., 463 U.S.

i RS | ee ae ee ee eee ae oe ee 32, 33

United States v. Thompson, 251 U.S. 407 (1920)... 27

United States v. W.T. Grant Co., 345 U.S. 629

CRED iicittnc iia ctbihotsaliichagniandetchedbib etnies ia adeiaisn 17, 18

Valley Forge Christian College v. Americans

United For Separation of Church & State, Inc.,

tS Re rey Seer 23-24, 25

Vander Jagt v. O’Neill, 699 F.2d 1166 (D.C. Cir.

1982), cert. denied,-464 U.S. 823 (1983) .............. 25

Warth v. Seldin, 422 U.S. 490 (1975) ....0.00.0000000002... 26

Wayte v. United States, 470 U.S. 598 (1985) ....... 28, 31, 32

Weinberger Vv. Romero-Barcelo, 456 U.S. 305

IED giadibicccesasiieialaDithakantendidalasaDaiccaman Eat 43

Weinstein v. Bradford, 423 U.S. 147 (1975) ........... 20, 22

Wyqant Vv. Jackson Board of Education, No. 84-

pM de ___. SERPENT ee 44

Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926) ............... 33

Younger V. Harris, 401 U.S. 37 (1971) ....34, 38, 39, 40, 41,

42, 43

Youngstown Sheet & Tube Co. v. Sawyer, 348 U.S.

ge RRR TA Ra aah soe odes ibaa 23

Vill

Constitutions, statutes and regulation : Page

U.S. Const. :

RE SI iiss igs heh deh toss bath alco hb a aacicetntainimanp asec 2, 26

ST ib heiictedeciisihdlidesautasclidsedtniphacipeasavevtuiatiiven 14, 20, 22, 23

NO ei nbidlasAeosetes cmtidiciek nani ph sckcacththacsbnmanaanen 2, 24

a asinhin ibteicasinnadh 7, 11, 18, 28, 30, 37

PRE NE ALR ie ee Sea 28

Amend. V (Due Process Clause) ....................-.... a.7

Amend. XIV (Equal‘Protection Clause) .......... 7,11, 43

ae a i caickiccceantons 7

Ck, CI, ae Bs Oe BBE cccnsinentesnninnscasescasncanes b, 7, 21

Administrative Procedure Act, 5 U.S.C. (& Supp.

ee aren dderepieainasbtintalichnnantndsentatemnemengamess 29

Civil Rights Act of 1964, Tit. VI, 42 U.S.C. 2000d

SR cinch: ccickcsdeciiinaieiceacktbnnghe seuhtpeiicantiiaieminirinidentyn 7

Federal Trade Commission Act § 5, 15 U.S.C. (&

es osc cana pnincmenimignnetainensaaes 30

Voting Rights Act of 1965, 42 U.S.C. (& Supp.

SI TR he aoe a ncacconncemnenteninuorntaend 7

Be Is INT oss ckscctescsccccnccnerccccceccecnenss 5

SI I rs cals ctebsinherinbaneninnt 2-3, 4

oi ce cnnncsnseem lie sonin voess 5

Cal. Gov’t Code (West 1980 & Supp. 1987) :

RRR 7 eC eC”, ea aE 5

(NE RN ROE, NTO OT 5

- § 6258.6 (Supp. 1987) ..................... 8, 5, 21

FERRET SRE Se ee IR Pe: SNOT 34

Miscellaneous:

49 Fed. Reg. 25887-25888 (1984) ...........20022000. eee 5

Model Code of Professional Responsibility EC 7-13

eA apt a SAU RE PEM a OR 34

The Federalist (J. Madison) C. Rossiter ed.

1961):

I A ia ela is nc ahinabidnipticiabindaeindibaaipbionns 23

IE. 1h ai olla enre nea enealis badeociena --aaeweninaianccnpanins 23

2 The Records of the Federal Piemmenilen of 1787

RE nee 24

Iu the Supreme Court of the United States

OCTOBER TERM, 1987

No. 86-1217

JOSEPH P. RUSSONIELLO, ET AL., PETITIONERS

Vv.

JOSE J. OLAGUES, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the en bane Court of Appeals for the

Ninth Circuit (Pet. App. la-388a) is reported at 797 F.2d

1511. The prior panel opinion of the court of appeals

(Pet. App. 4la-75a) is reported at 770 F.2d 791. The

opinions of the district court on summary judgment (Pet.

App. 78a-95a) and on motion to dismiss (Pet. App. 96a-

97a) are unreported.

JURISDICTION

The judgment of the court ef appeals was entered on

August 26, 1986. A suggestion for rehearing en banc

by the full court of appeals was denied on December 19.

1986. On November 14, 1986, Justice O’Connor extended

the time within which a petition for a writ of certiorari

could be filed to and including January 23, 1987, and

such a petition was filed on that date. On April 20, 1987,

the Court issued a writ of certiorari and invited the

(1)

parties to brief and argue the question of possible moot-

ness. The jurisdiction of the Court rests on 28 U.S.C.

1254 (1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Article II of the Constitution provides in pertinent

part:

The executive Power shall be vested in a President

of the United States of America| ]

* * ~ * *

* * * he shall take Care that the Laws be faithfully

executed * * *.

Article III, Section 2 of the Constitution provides in

pertinent part:

The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the

Laws of the United States, * * * to all Cases, * * *

to Controversies * * *.

The Fifth Amendment of the Constitution provides in

pertinent part:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury * * *.

42 U.S.C. 1973i(c) provides in pertinent part:

Whoever knowingly or willfully gives false infor-

mation as to his name, address or period of resi-

dence in the voting district for the purpose of estab-

lishing his eligibility to register or vote, or conspires

with another individual for the purpose of encourag-

ing his false registration to vote or illegal voting,

or pays or offers to pay or accepts payment either

for registration to vote or for voting shall be fined

not more than $10,000 or imprisoned not more than

five years, or both: Provided, however, That this

provision shall be applicable only to general, special,

or primary elections held solely or in part for the

purpose of selecting or electing any candidate for the

office of President, Vice President, presidential elec-

eee

tor, Member of the United States Senate, Member of

the United States House of Representatives * * *.

California Government Code § 6253.6 (West Supp.

1987) (underscoring omitted) provides:

(a) Notwithstanding the provisions of Sections

6252 and 6253, information compiled by public of-

ficers or public employees revealing the identity of

persons who have requested bilingual ballots or bal-

lot pamphlets, made in accordance with any federal

or state law, or other data that would reveal the

identity of the requester, shall not be deemed to be

public records and shall not be provided to any per-

son other than public officers or public employees

who are responsible for receiving those requests and

processing the same.

(b) Nothing contained in subdivision (a) shall be

construed as prohibiting any person who is otherwise

authorized by law from examining election materials,

including, but not limited to, affidavits of registra-

tion, provided that requests for bilingual ballots or

ballot pamphlets shall be subject to the restrictions

contained in subdivision (a).

STATEMENT

1. Petitioner, Joseph P. Russoniello, is the United

States Attorney for the Northern District of California

(Pet. App. 3a); co-petitioner, David Ilchert, is the Dis-

trict Director in San Francisco for the Immigration and

Naturalization Service (INS) (id. at 5a). In March

1982, Russoniello received information from various

sources indicating that, in one of the counties in his dis-

trict, a substantial number of foreign-born persons who

were not United States citizens had registered to vote,

even though as noncitizens they were ineligible to do so

(id. at 25a; J.A. 175-176).' Russoniello learned from the

1 Among other things, Russoniello received a newspaper article

which reported that the district attorney of Santa Clara County,

California had conducted a study showing that a significant number

of foreign-born noncitizens had registered for and then voted in

district attorney of that county that many of these non-

citizen registrants either did not speak or were not fluent

in English and, furthermore, that many had been told by

the persons registering them that they were in fact eli-

gible to vote, either because they were married to a

United States citizen or because they had resided in this

country for a long period (Pet. App. 25a-26a; J.A. 177-

178).

Based on these facts suggesting that certain persons

or organizations were registering or conspiring to regis-

ter noncitizen voters in violation of 42 U.S.C. 1973i(c),

and motivated in-part by concern that the results of the

upcoming June 8, 1982 California primary elections

could be subject to challenge if noncitizen voting was

widespread (Pet. App. 3a-4a, 25a-26a, 79a; J.A. 22-24,

177), Russoniello determined to investigate the extent of

the noncitizen voter fraud registration problem in the

San Francisco Bay Area (J.A. 177-179). Accordingly,

on April 19, 1982, he wrote to the district attorneys and

voter registrars in nine counties in his district requesting

their assistance (Pet. App. 26a, 78a-80a; J.A. 178-179).*

Russoniello explained that he had information indicating

that a substantial number of noncitizens had recently

registered to vote, that persons who did not understand

English were the most susceptible to being confused or

misled about their eligibility to do so,* and that such per-

elections held in that county in 1980. See J.A. 176, 236; see also

J.A. 23 (at least 20 of a 100 person sample were noncitizen reg-

istrants). See generally J.A. 206-215.

2 The counties were Alameda, Contra Costa, Monterey, Napa, San

Francisco, San Mateo, Santa Clara, Santa Cruz, and Sonoma.

® Russoniello later learned that the Spanish translation of the

voter registration form being used in these counties erroneously |

stated that a registrant “should” be, rather than “must” be, a

United States citizen (Pet. App. 79a & n.1; J.A. 122). This fact

confirmed Russoniello’s suspicion that registration irregularities

were most likely to occur among those who did not speak English

(Pet. App. 79a & n.1; J.A. 179).

rere rere

sons could be identified by their requests for bilingual bal-

lots.* He therefore proposed that the voter registrar in

each of these counties randomly select from public rec-

ords and submit to him the names of 25 recently-regis-

tered, foreign-born voters who had requested such bi-

lingual voting materials, which he would forward to the

INS for verification of the registrants’ citizenship status

(Pet. App. 79a-80a; J.A. 22-26, 178).5 Russoniello fur-

ther suggested that, as to registrants whom the INS could

not positively identify as citizens, the district attorneys

should contact the registrants, determine whether they

were citizens and, if not, determine who, if anyone, had

encouraged them improperly to register (Pet. App. 43a,

80a; J.A. 24-25). He made clear that he did not intend

* Though foreign-born individuals are required to learn English

before they may become naturalized citizens (see 8 U.S.C. 1423(1)),

the federal law in effect in 1982 required these nine counties to

make available “voting notices, forms, instructions, assistance, or

other materials or information relating to the electoral process,

including ballots” (42 U.S.C. 1973aa-la(c)), in Spanish as well as

in English (Pet. App. 3a). The County of San Francisco had to

make these materials available in Chinese as well (ibid.).

In 1984, these nine counties were relieved of their obligation

under federal law to provide such bilingual election materials (Pet.

App. 9a n.5; see also 49 Fed. Reg. 25887-25888 (1984)). Indeed, in

November 1986, California voters adopted Proposition 63, an initia-

tive now incorporated as Section 6 to Article III of the California

Constitution, which provides that English is the “official language

of California” and that public officials “shall take all steps necessary

to insure that the role of English as the common language of the

State of California is preserved and enhanced” (Cal. Const. Art.

III, $6). According to respondents (Br. in Opp. 12-13 n.8), Propo-

sition 68 may bar the nine counties involved from providing

bilingual voting materials.

*Inm 1982, voter registration information in the State of Cali-

fornia, including records revealing the names of persons who had

requested bilingual ballots, was a matter of public record. See Cal.

Gov't Code §§ 6252, 6253 (West 1980). California law has since

been amended, however, to provide that records revealing the iden-

tity of persons requesting bilingua! ballots may not be made pub-

licly available. See Cal. Gov’t Code § 6253.6 (West Supp. 1987).

to prosecute any such noncitizen registrants, but would

seriously “consider” prosecuting any group or individual

who had deliberately conspired to register unqualified

voters (J.A. 25).

The voter registrars subsequently submitted to the

United States Attorney a total of 168 names (Pet. App.

43a, 80a). By checking its own records, as well as the

fingerprint indices of the Federal Bure.u of Investigation

(FBI), the INS determined that 55 of these persons were

in fact United States citizens, that 45 were definitely or

probably not citizens, and that no records existed for the

remaining 68 persons (id. at 80a; J.A. 64, 180). In late

May 1982, Russoniello conveyed this information to the

local district attorneys and again asked that they conduct

interviews of those persons not positively identified as

United States citizens (Pet. App. 5a, 80a; J.A. 62-66).

Several of the local district attorneys did so, either by

letter or by noncustodial contact (Pet. App. 80a-81la; see

also J.A. 118-114, 155-156, 183-184, 187-188).

In September 1982, after reviewing the results of these

efforts, the United States Attorney’s office terminated its

involvement in the investigation, turning the matter over

to the FBI and the INS for routine handling pursuant

to their statutory responsibilities (J.A. 180-181). The

FBI apparently made some follow-up contacts during

October 1982 (J.A. 223). The investigation was then

terminated altogether. See Pet. App. 7a-8a, 27a, 44a;

Br. in Opp. 5, 22; see also J.A. 102, 114, 156, 180-181, |

184, 188, 190.

2. On May 12, 1982, however, before the investigation

was terminated, respondents Jose J. Olagues, an His-

panic-American citizen whose’ name was randomly se-

lected for investigation, and certain Hispanic-American

and Chinese-American voting rights organizations filed

this action against Russoniello and the other government

officials involved in the investigation (Pet. App. 5a; J.A.

§-8).° Specifically alleging the course of events set forth

® Respondents subsequently moved for leave to file a second

amended complaint adding two more individuals—Evelia Diaz-

ae ees

above, respondents purported to bring their action on

behalf of classes of plaintiffs who had requested foreign

language election materials or had been deterred or were

likely to be deterred from doing so, or who had partici-

pated in bilingual voter education efforts (J.A. 9-10).

In particular, respondents asserted violations of the

Fifteenth Amendment, the Equal Protection Clause, the

Due Process Clause, the First Amendment, the Voting

Rights Act of 1965, 42 U.S.C. (& Supp. III) 1971 et

seq., Title VI of the Civil Rights Act of 1964, 42 U.S.C.

2000d et seg., and a right of privacy guaranteed under

the California Constitution (J.A. 11-14, 15-18).7 Re-

spondents prayed that the district court enjoin any fur-

ther culling from voter registration records of the names

of persons seeking bilingual election materials, any dis-

closure of such information as has already been collected,

and any questioning of such foreign-born persons. They

also sought a declaration that these investigative activi-

ties are unlawful, and an award of monetary relief (J.A.

18-21).

Infante and Juan D. Martinez—as named parties-plaintiff. Seo

J.A. 77-98. But the district court denied the motion to amend. See

Pet. App. 76a. The court of appeals thus treated the case as if

Jose Olagues was the only individual party-plaintiff. See id. at 2a,

5a, lla-12a. Accordingly, in this brief, we refer to the first

amended complaint as the complaint upon which this action was

based. The arguments advanced herein are, however, equally ap-

plicable to the parties and allegations set forth in the second

amended complaint.

T Specifically, respondents alleged that “Russoniello initiated a

secret probe of Hispanic-American and Chinese-American voters

by sending a letter to nine Bay Area District Attorneys” (J.A.

1) (emphasis omitted) ); that “[s]uch an investigation * * * was

not based on any reasonable suspicion that foreign born voters were

comnitting fraud nor that the problem of voter irregularities was

limited only to persons of Hispanic-American or Chinese-American

descent” (J.A. 12); and that respondents had been “arbitrarily dis-

criminated against” on the basis of their race and national origin,

deprived of their “right of association and right to refuse to answer

question[s] as to political activity,” and “effectively intimidate[d],

threaten[ed] and coerce[d]” in their registration and associational

activities (J.A. 13).

In support of their claims, respondents filed affidavits

concerning the adverse effects that the investigation al-

legedly had had and would continue to have on them.

Respondent Olagues expressed his “fear” that he would

“soon be contacted by local law enforcement agencies

to prove my citizenship or to determine if I have been

contacted by registrars of voters or special interest

groups,” and stated that he was “deeply troubled over

the fact that I, as well as other United States Citizens,

will become targets of investigations for exercising our

legal right to bilingual voter information” (J.A. 45-46).

Officials associated with the organizational respondents

submitted declarations concerning the effects of the in-

vestigation on their efforts, stating that they had “ex-

perienced a noticeable decrease in the number of volun-

teers who have helped register voters” in the weeks since

the investigation was initiated (J.A. 30), that the “fear

instilled by the potential of such inquiries has had

a chilling effect upon the activities of the [organizations]

and the fulfillment of [their] objectives” (J.A. 32), and

that Russoniello continued to pursue the investigation

notwithstanding a request that it be terminated (J.A.

37).°

8 Representatives of other voter registration organizations, al-

though not party to the lawsuit, also submitted affidavits concern-

ing their perception of the effect that this investigation was having

on Hispanic-Americans and Chinese-Americans. See J.A. 38-41

(Declaration of Luanne Lash); J.A. 54-56 (Declaration of Lydia

Gonzalez); J.A. 75-76 (Declaration of Maria Virginia Salmon) ;

see also J.A. 60-61 (Declaration of Rudolph G. Rodriguez). Also,

several individuals whose names had been selected for investigation

stated that the “investigation is unfair since [the government offi-

cials} had no reason to ever believe that [we are] illegally registered

to vote” (J.A. 223 (Declaration of Lilia Isabel Medina) ) and that

they were “very upset and bothered” that “a secret investigation

was going on about [their] qualifications to vote” (J.A. 227 (Dec-

laration of Maria Gloria Rodriguez)). In addition, one individual

who feared that his name might be selected for investigation stated

that he did “not think that any citizen should have to answer any

On the government’s motion, the district court, on

May 24, 1982, dismissed respondents’ prayer for injunc-

tive relief, holding that it had “no jurisdiction to enjoin

or otherwise control a preliminary investigation of the

U.S. Attorney’s office” (Pet. App. 96a). Then, on De-

cember 15, 1982, in ruling on cross-motions for summary

judgment, the court dismissed the remainder of respond-

ents’ suit (id. at 8la). In an opinion filed later, the

court noted that nothing in the record suggested that the

voter interviews involved involuntary interrogation or

that any individual was penalized in any way for refus-

ing to cooperate (id. at 80a-8la). It also observed that

the information provided by the local defendants and the

INS was a matter of public record (id. at 84a) and that,

given the evidence of possible fraud, “the United States

Attorney ha[d] the right, if not the duty, to at least

determine the scope of the actual problem and, if neces-

sary, instigate -required remedial action” (id. at 85a-

87a). Accordingly, it held that defendants’ action did not

violate any clearly established right of the plaintiffs (id.

at 88a), and that all defendants, including petitioners,

were entitled to qualified immunity and summary judg-

ment (id. at 95a).

3. A divided panel of the Ninth Circuit affirmed (Pet.

App. 4la-75a). It first ruled that the termination of the

investigation did not render the controversy moot, as to

the claims for either monetary or equitable relief (id. at

44a-47a), and that the organizational respondents had

standing to seek both types of relief, while the individual

respondent had standing only to seek damages (id. at 47a-

questions of the District Attorney[] simply because [he] didn’t

ask for a ballot in English” (J.A. 49 (Declaration of Luis Diaz-

Infante) ). Finally, the two individuals that respondents unsuccess-

fully attempted to add as parties-plaintiff stated, respectively that

they did not “want to be bothered” (J.A. 52 (Declaration of Evelia

Diaz-Infante)) and that they were “very upset at [their] local

officials that are cooperating with an investigation that * * * only

serves to discourage people from registering to vote, voting, and

registering other voters” (J.A. 58 (Declaration of Juan D.

Martinez) ).

54a). The court found that the individual’s allegation that

the investigation had a “chilling effect” on him did not pre-

sent a “justiciable claim” (id. at 49a), and that any

“stigma” he suffered from “public disclosure that the in-

vestigation was taking place * * * apparently was self-

induced by the filing of this lawsuit” (id. at 50a). By

contrast, it found that the organizational respondents had

standing to challenge the investigation because “their

voter registration and educational efforts have been

hindered as the direct resylt of the challenged investiga-

tion” (id. at 51a), and “they are undoubtedly the tar-

gets of Russoniello’s investigation and may be charged

with improperly influencing ineligible persons to register”

(id. at 52a).

The court then held that none of the respondents were

entitled to the equitable or monetary relief they sought

(Pet. App. 54a-69a). While rejecting the district court’s

conclusion that it lacked jurisdiction to enjoin or other-

wise control the investigation (id. at 54a), the court held

that, in view of the “difficult problems of separation of

powers’” (id. at 55a, quoting Jett v. Castaneda, 578

F.2d 842, 845 (9th Cir. 1978)), presented by the crimi-

nal investigative process, an action to enjoin such investi-

gative activities should be entertained “only in extraordi-

nary circumst:nces” (Pet. App. 55a). Stating that “a

United States Attorney is entitled, indeed required,” to

pursue allegations of vote fraud (id. at 61a), and that

the present investigation was “reasonably limited in both

its scope and its use of classifications” (ibid.), the court

found no such extraordinary circumstances suggested by

the record in this case (id. at 55a). For the same rea-

sons, the court also upheld the district court’s denial of

declaratory relief (id. at 64a). Finally, it determined

that the investigation did “not violate any ‘clearly estab-

lished’ rights” (id. at 68a-69a), so that “all those sued

were entitled at least to qualified, good faith immunity”

from liability for damages (1d. at 68a).°

® Judge Nelson dissented (Pet. App. 69a-75a). She agreed with

the majority that the organizations had standing and that the

4. On petition for rehearing, the court vacated the

panel decision and, by a six to five vote, reversed and

remanded the case to the district court (Pet. App. la-

38a). Like the panel, the en banc majority found that

defendants were entitled to immunity from monetary lia-

bility (id. at 23a-24a), and that the termination of the

investigation for lack of prosecutorial merit did not moot

respondents’ prayers for injunctive and declaratory re-

lief, because there was “a possibility of continuing ad-

verse effects” (id. at 6a-10a)."° In any event, the court

held that the issues raised by this case are “capable of

repetition yet evading review” (id. at 9a). It noted that

voter registration investigations, such as the one con-

ducted in the present case, may be of short duration, and

that, “‘[b]ecause Russoniello is authorized to investigate

election fraud and has the means to repeat a similar

bilingual voter registration investigation, it is reasonable

defendants were entitled to good faith immunity from damag& (id.

at 69a). Unlike the majority, however, she concluded that the

individual respondent had standing, that extraordinary circum-

stances are not required to enjoin an investigation that infringes

upon First Amendment rights, and that declaratory and injunctive

relief should not be judged under the same standards (id. at 69a-

70a). Judge Nelson argued that a district court always has

equitable authority to enjoin an investigation that lacks a “reason-

able basis” (id. at 7la-72a), and to issue declaratory relief con-

cerning any unconstitutional action by a government official (id.

at 72a-73a). Accordingly, she said that an investigation should be

enjoined “if it lacks a reasonable basis or was initiated in bad

faith” (id. at 71a) and that this investigation should, in any event,

be declared unconstitutional under the Equal Protection Clause

given the insufficient justification for its utilization of a suspect

classification (id. at 75a).

10The court reasoned that “the termination of Russoniello’s

investigation is not irrevocable” (Pet. App. 7a), that these in-

dividuals “are understandably insecure in exercising their re-

cently acquired rights as citizens, and easily intimidated by govern-

ment action” (ibid.), and that, “[t]herefore, unless * * * the

legality of [the] investigation [is determined] * * *, the [o]rgani-

zations’ registration drives may continue to suffer from the chilling

effects of the investigation despite its termination” (id. at 7a-8a).

to believe that the [respondents] could be the targets of

a similar investigation in the future” (ibid.). Like the

panel, the en bane majority further determined that the

organizational respondents had standing to seek equi-

table relief (id. at 12a-15a), but, unlike the panel, also

found that respondent Olagues had standing to seek such

relief (id. at lla-12a). The majority reasoned that re-

spondent Olagues “was stigmatized as a person who

might have registered to, vote illegally” (id. at lla) and

that “the Government required [him] to prove his citi-

zenship, an affirmative obligation the Government did not

place on people who request[ed] English language ballots”

(id. at 12a).

The en banc majority then determined that the district

court had jurisdiction to enjoin or declare unlawful the

investigation and remanded the case for determination

whether an injunction and/or a declaratory judgment

should issue (Pet. App. 15a). Examining the merits of

respondents’ claims as a guide for the district court on

remand, the court declared that “the voter registration

fraud investigation directed toward foreign-born, recently

registered voters, requesting bilingual ballots involve[d]

a suspect classification” (id. at 19a), may have burdened

respondents’ “fundamental right” to vote (id. at 20a),

and may have “interfered with their constitutional right

of association and political expression” (id. at 22a (foot-

note omitted) ).%* The court thus remanded with instruc-

tions that the district court determine whether the in-

vestigation conducted was “the least drastic means of

11 The court noted that the district court erred in “appl[ying]

the good faith immunity standard * * * to * * * bar[] [all] equi-

table relief” (Pet. App. 16a n.8).

12 At the same time, the en banc majority determined that there

was “no evidence that by investigating the individual appellants,

the Government intended to deny or abridge their right to vote”

(Pet. App. 2la (footnote omitted) ) and thus upheld “the district

court([s] * * * (grant of] summary judgment on the Voting Rights

Act claims” (id. at 22a).

achieving [the] governmental interest” in preventing

voter registration fraud (id. at 19a), whether respond-

, ents’ right to vote was unduly burdened (id. at 20a),

| and whether respondents’ First Amendment interests out-

weighed the government’s interest in preventing voter

registration fraud (id. at 23a).

Judge Wallace, joined by Judges Sneed, Alarcon and

Beezer, dissented (Pet. App. 25a-36a). Judge Wallace

argued that respondent Olagues lacked standing to seek

equitable relief, reasoning that there would be no reason

to investigate again the voter registration of a person

found to be a citizen and that, in any event, the effect of

any such investigation upon him would be de minimis

(id. at 29a). He further argued that the majority had

failed “to respect the special limitations on our power to

enjoin criminal investigations by the executive branch”

(ibid.). While suggesting that “the separation of powers

principle may not mandate judicial inaction in a case

where the executive outrageously oversteps the limita-

tions on prosecutorial power” (id. at 30a), Judge Wallace

found “nothing egregious about the prosecutorial conduct

in this case” (id. at 3la). He stated that the United

States Attorney had focused his investigation on recently-

registered, foreign born voters requesting bilingual bal-

lots only “to narrow his inquiries to those persons who

may have [had] knowledge of serious criminal activity”

(id. at 33a); that any burden created by the investiga-

tion was “a burden that all citizens must be asked to

bear when they are potential witnesses to unlawful con-

duct” (id. at 36a); and that neither the review of public

records nor the follow-up questioning of potential wit-

nesses “involve{d] any violation of first amendment

rights” (ibid.). Accordingly, Judge Wallace concluded

that the requirements for equitable relief against a prose-

cutorial investigation were not met in this case (id. at

31a).

13 Judge Wallace rejected the proposition that the language based

classifications used in the investigation should be subjected to strict

scrutiny, but concluded, in any event, that the need for them was

sufficiently compelling to survive that test (Pet. App. 3la).

Judge Sneed filed a separate opinion concurring in

Judge Wallace’s dissent (Pet. App. 37a-38a). Judge Hug

filed a separate dissent arguing that the case was moot

(id. at 836a-37a).

SUMMARY OF THE ARGUMENT

I. This case is now moot. The voter registration fraua

investigation giving rise,to this litigation ended approxi-

mately five years ago, and there is no reasonable expecta-

tion that it will be reopened. The United States Attorney

initiated the investigation in response to unique condi-

tions that no longer exist and terminated it precisely

because it failed to produce evidence justifying further

action. There are no continuing adverse effects suggest-

ing a controversy as to whether injunctive or declaratory

relief might issue. Nor does this case fit within the “ca-

pable of repetition, yet evading review” exception to ordi-

nary Article III mootness principles. There is nothing

peculiarly short-lived about governmental action directed

against voter fraud and, to whatever extent an investi-

gation leads to the filing of criminal charges, objections

to government conduct can be raised in that proceeding.

In any event, respondents have not made a reasonable

showing that they are likely to be subjected again to the

allegedly illegal activity that they challenge in this case.

II. Assuming, arguendo, that this lawsuit is not moot,

it is nevertheless “nonjusticiable’ under Article III of

the Constitution. At least in the absence of legislation

creating legal rights and standards by which the Execu-

tive is to be limited in its investigation of criminal cases,

review of a prosecutor’s preliminary conduct is not a

proper subject for the exercise of the “judicial Power.”

Pre-indictment decisions concerning whether, when, and

how to investigate potential criminal activity are an in-

tegral part of the prosecutorial power and, in general,

should not be subjected to judicial review until the Execu-

tive Branch engages in coercive or publicly accusatory

activity. Internal, deliberative activities of the Executive

Branch are neither “final” nor “authoritative” and thus

lack the focus necessary for limited judicial review. Fur-

thermore, the internal, deliberative activities of the Ex-

ecutive Branch are inherently preliminary and ambiguous,

and thus are not subject to judicially manageable stand-

ards.

The voter fraud investigation challenged in this case

did not involve the sort of coercive or publicly accusatory

activity essential to a judicially cognizable controversy.

It included the search of public records for information

concerning recent voter registrants; the circulation of

that information among various government officials; and

voluntary, noncustodial interviews of various individuals

whom were believed to have information about possible

criminal activity. None of these activities is an appro-

priate predicate for the exercise of the “judicial Power.”

III. Assuming, arguendo, that the separation of

powers between the Executive and Judicial Branches in

some circumstances allows for pre-indictment judicial re-

view of the manner and scope of noncoercive activities of

a United States Attorney, it is nevertheless true that in-

junctive and declaratory relief cannot issue here. Settled

principles of equity jurisprudence provide that state law

enforcement activities may be enjoined or declared un-

constitutional only in “extraordinary circumstances.” No

lesser restriction on the judiciary’s equitable powers

should apply where federal criminal investigative activi-

ties are in issue. No such “extraordinary circumstances”

exist in this case.

Respondents have not alleged sufficient injuries to pro-

vide themselves with standing to seek equitable relief,

much less the “great and immediate” irreparable injury

necessary to justify the granting of equitable relief. Re-

spondents are unable to establish a reasonable likelihood

that they will again be subjected to the activities about

which they complain. In any event, the harms they allege

can be adequately remedied through the defense of any

prosecution that might result or by an action for money

damages.

Nor were the circumstances extraordinary in the sense

that they involved governmental action conducted in bad

faith, for the purpose of harassing respondents, or in

flagrant disregard of respondents’ rights. The govern-

ment possessed information indicating that various per-

sons or organizations may have been conspiring fraudu-

lently to register unqualified voters. It was proper, and

perhaps obligatory, that an investigation be conducted.

That the ensuing investigation in some sense focused on

persons of Chinese-American and Hispanic-American

descent is neither alarming nor problematic. Law en-

forcement officials may consider group characteristics and

statistical profiles, including the national origin or race

of suspects and witnesses, in narrowing their investiga-

tions. The United States Attorney’s focus on the regis-

trants’ foreign birth, recent registration, and request for

bilingual ballots reflects just such an effort to identify

those persons who were most likely to possess informa-

tion about the problem he was investigating. Accord-

ingly, the court below should not have remanded this

ease for further proceedings with respect to the prayers

for equitable relief.

ARGUMENT

I. THE TERMINATION OF THIS VOTER REGISTRA-

TION FRAUD INVESTIGATION FOR LACK OF

PROSECUTORIAL MERIT MOOTS RESPONDENTS’

PRAYERS FOR INJUNCTIVE AND DECLARA-

TORY RELIEF

A. The court of appeals remanded this case for trial

on the issue of whether injunctive or declaratory relief

should be granted against the conduct of a criminal in-

vestigation which ended several years ago. This Court

has long said that a lawsuit is “moot when the issues

presented are no longer ‘live’ [and] the parties lack a

legally cognizable interest in the outcome” (Powell v.

McCormack, 395 U.S. 486, 496 (1969)). Issues are no

longer “live” when the conduct giving rise to them has

ceased and “ ‘there is no reasonable expectation * * *’

that the alleged violation will recur” (County of Los An-

geles v. Davis, 440 U.S. 625, 631 (1979), quoting United

States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) ).

Parties lack a legally cognizable interest in a lawsuit’s

outcome when “interim relief or events have completely

and irrevocably eradicated the effects of the alleged vio-

lation” (County of Los Angeles v. Davis, 440 U.S. at

631). See also Defunis v. Odegaard, 416 U.S. 312, 316-

319 (1974). These conditions are satisfied here.

As respondents concede (Br. in Opp. 5, 22), all of the

conduct at which the lawsuit was directed—the culling of

names of persons requesting bilingual election materials

from voter registration files, the circulation of those

names among Russoniello, the INS, and certain local gov-

ernment officials, and the plan to question a subset of

persons requesting bilingual ballots concerning the cir-

cumstances under which they had been encouraged to

was terminated. See Pet. App. 5a, 7a-8a, 27a, 44a, 80a-

8la; J.A. 113-114, 155-156, 180-181, 183-184, 187-190.

There is no reason to suppose that it will be reopened."

The investigation was tailored to the unique condi-

tions confronted in March and April 1982. At that time,

available information indicated that a substantial num-

ber of foreign-born persons had recently registered to

vote, that those persons may have been misled about their

14 The court below erred in suggesting (Pet. App. 7a) that this

case is not moot because “the termination of Russoniello’s investiga-

tion [was] not irrevocable.” This Court has never suggested that

a case is moot only where there is no possibility that the challenged

conduct will recur. That a slight possibility exists that the chal-

lenged conduct could recur at some unspecified time in the future

“is simply too remote to satisfy the case-or-controversy requirement

and permit adjudication by a federal court” (O’Shea v. Littleton,

414 U.S. 488, 498 (1974)). See also Golden Vv. Zwickler, 394 U.S.

103, 109 (1969). There must be a “reasonable likelihood” that the

conduct will recur. See Jron Arrow Honor Society v. Heckler, 464

U.S. 67, 72 (1988).

eligibility to vote, and that, if the improper registrations

were widespread, the imminent June 8, 1982 elections

could be subject to challenge. Given the time constraints

involved, the officials made only a preliminary inquiry

into the problem, using criteria calculated to give a rep-

resentative insight into the breadth and nature of any

voter registration fraud. Moreover, they terminated that

preliminary inquiry when “it failed to produce evidence

supporting any further investigative efforts” (Pet. App.

8a) and, over the intervening five years, they have not

used the data gathered in 1982 in any such voter registra-

tion fraud investigation, even though federal elections

were held in 1984 and 1986. See J.A. 102, 113-114, 155-

156, 180-181, 183-184, 187-190. In these circumstances,

it is clear that there is “no reasonable likelihood” that the

challenged conduct will recur. See Jron Arrow Honor

Society v. Heckler, 464 U.S. 67, 72 (1983) (where de-

fendant has publicly announced its decision to cease and

desist from challenged conduct and not to return to it,

that conduct cannot reasonably be expected to recur) ;

County of Los Angeles v. Davis, 440 U.S. at 631-632

(where procedure used only once and in response to a

unique set of conditions, challenged conduct cannot rea-

sonably be expected to recur) .¥

15 There is no basis in this case for suggesting that Russoniello

and the other government officials terminated the investigation sim-

ply to moot the lawsuit. Cf. United States v. W.T. Grant Co., 345

U.S. 629, 632-633 & n.5 (1953) (citation omitted) (prayers for

injunctive and declaratory relief cannot be mooted by “ ‘protesta-

tions of repentance and reform, especially when abandonment seems

timed to anticipate suit, and there is probability of resumption’ ”’).

Russoniello actually refused requests by respondents and others to

terminate the investigation. See J.A. 37, 219-220. Moreover, he

continued the investigation for four months after the filing of the

lawsuit and terminated it only upon determining that it had pro-

duced no evidence upon which further investigatory or prosecu-

torial action could be based. See Pet. App. 8a; J.A. 180-181. Fur-

thermore, in the five years since the investigation was terminated,

neither Russoniello nor any other official has shown any interest in

Nor are there any substantial continuing effects from

the past investigation sufficient to sustain a finding of a

live controversy with respect to the injunctive and de--

claratory relief requested in this case. Respondents al-

legedly suffered injury from the manner in which peti-

tioners and other officials gathered and used information

about the requests of foreign-born registrants for bi-

lingual election materials. But any injuries allegedly

suffered by respondents as a result of these investigative

activities were properly the subject of respondents’

prayer for monetary relief, and there can be no reason-

able claim of continuing injury—justifying equitable re-

lief—from conduct which ended approximately five years

ago. See City of Los Angeles v. Lyons, 461 U.S. 95, 105-

109 & nn. 7-8, 111 (1983) (no case or controversy with

respect to injunctive or declaratory relief unless there is

“a real and immediate threat of future injury by the de-

fendant”); O’Shea v. Littleton, 414 U.S. 488, 495-496

(1974) (“Past exposure to illegal conduct does not in it-

self show a present case or controversy regarding injunc-

tive relief, however, if unaccompanied by any continuing,

present adverse effects.”’) .”*

reviving it; rather, they have announced to the courts, the re-

spondents, and the public that this particular investigation has

ended. See J.A. 102, 114, 155-156, 180-181, 184, 188, 190.

16 That the government officials in this case had an immunity

from damages (because they acted ‘n objective “good faith’) does

not change this result. See Ashcroft v. Mattis, 431 U.S. 171, 171-

172 (1977) (per curiam). Nor can this conclusion be avoided on

the ground suggested by the court below (Pet. App. 7a-8a) that

because recently-registered, foreign-born persons are “easily intimi-

dated by government action,” and thus may continue to be afraid

to vote or request bilingual ballots, there are continuing adverse

effects sufficient to satisfy the “case” or “controversy” requirement.

As this Court has said, “[i]t is the reality of the threat of repeated

injury * * *, not the [respondents’] subjective apprehensions” con-

cerning such future injury, that is relevant (City of Los Angeles

v. Lyons, 461 U.S. at 107 n.8 (emphasis in original) ).

B. Nor does this investigation fit within the ‘capable

of repetition, yet evad[ing] review” exception to ordinary

Article III mootness principles. That doctrine applies

“only in exceptional situations” (City of Los Angeles Vv.

Lyons, 461 U.S. at 109), specifically, where (1) the chal-

lenged action is “by nature short-lived” (Nebraska Press

Ass’n Vv. Stuart, 427 U.S. 539, 547 (1976)), and where

(2) there is a “reasonable expectation that the same

complaining party [will} be subjected to the same action

again” (Weinstein v. Bradford, 423 U.S. 147, 149 (1975)

(per curiam) ). Accord, Murphy v. Hunt, 455 U.S. 478,

482 (1982) (per curiam); Jilinois Elections Bd. Vv.

Socialist Workers Party, 440 U.S. 178, 187 (1979). Nei-

ther condition is satisfied here.

There is nothing peculiarly short-lived about govern-

mental action aimed at identifying, rooting out, and pos-

sibly punishing conduct involving voter registration fraud,

such as would suggest that those activities will evade effec-

tive judicial review. Compare Defunis v. Odegaard, 416

U.S. at 319 (law school admission practices will not by

their nature evade effective review), with Nebraska Press

Ass’n V. Stuart, 427 U.S. at 546-547 (pre-trial publicity

restraints by their nature will evade effective review) ;

Roe v. Wade, 410 U.S. 113, 125 (1973) (restrictions on

means for aborting pregnancy by their nature will evade

effective review). Like other types of criminal investiga-

tions, those concerning vote fraud may be either long or

short and, indeed, as they often require extensive data-

gathering, will often be quite lengthy. Of course, some

such investigations carry a special urgency, imposed by

circumstances such as the impending election that was

a matter of substantial concern in this case. Even in

instances where the investigation is short, however, af-

fected parties will be provided with a forum in which °

‘raise any objections they may have to the motivation or

manner of the investigation where the government ulti-

mately takes legal action. Only where the investiga-

tion culminates in a decision to take no action, either

criminal or civil—thus vindicating those under scrutiny—

is a suspect or other affected party in any sense likely to

be without a forum in which to air his or her grievances.

Even then, however, to the extent such matters present a

justiciable controversy, these investigative activities may

be challenged in an action for damages. See City of Los

Angeles v. Lyons, 461 U.S. at 109.

In any event, respondents have also made no reasonable

showing that they are likely to be subjected again to

investigative action like that challenged in this case. See

City of Los Angeles v. Lyons, 461 U.S. at 109; Murphy v.

Hunt, 455 U.S. at 482-483. The government now knows

that respondent Olagues is a legally registered citizen and

will obviously not investigate him again as a possible non-

citizen voter. More generally, the unique conditions that

brought about this investigation no longer exist, and it

is unrealistic to suppose that the government would

reinstitute any similar investigation—especially since this

one was terminated precisely because it failed to produce

evidence meriting further inquiry. Cf. City of Los An-

geles Vv. Davis, 440 U.S. at 632; County of Los Angeles Vv.

Lyons, 461 U.S. at 109. Indeed, as respondents them-

selves note (Br. in Opp. 11-12), California has since

amended its law to provide that “information compiled by

public officers or public employees revealing the identity

of persons who have requested bilingual ballots * * * or

other data that would reveal the identity of the requester,

shall not be deemed to be public’ (Cal. Gov’t Code

§ 6253.6 (West Supp. 1987) (underscoring omitted) ), and

it thus appears that government officials could not col-

lect voter registration information in the same way as

they did here, even if they wanted to do so.’7 Hence,

17 In fact, the California Constitution has recently been amended

to require public officials to “insure that the role of English as the

common language of the State of California is preserved and en-

hanced” (Cal. Const. Art. III, § 6). Thus, as respondents note (Br.

in Opp. 12-13 n.8), it may be the case that bilingual ballots will not

be available in the future, thus rendering impossible the sort of

inquiry undertaken here. i

there can be no “reasonable expectation that the same

complaining part[ies] [will] be subjected to the same

action again” (Weinstein v.. Bradford, 423 U.S. at 149).

C. In short, this case is moot under both ordinary

mootness principles and the “capable of repetition, yet

evading review” exception. The appropriate disposition,

therefore, is to vacate the judgment of the court below

and to remand with instructions that the district court

be directed to dismiss ‘the prayers for injunctive and

declaratory relief. See United States v. Munsingwear,

Inc., 340 U.S. 36, 39 (1850).

il. THE JUDICIARY EXCEEDS ITS CONSTITU-

TIONAL AUTHORITY UNDER ARTICLE Il

WHEN, IN THE ABSENCE OF LEGISLATION

CREATING A CAUSE OF ACTION AND ENUNCI-

ATING STANDARDS BY WHICH THE GOVERN-

MENT’S CONDUCT IS TO BE JUDGED, IT ENTER-

TAINS A PRE-INDICTMENT CHALLENGE TO

THE NONCOERCIVE INVESTIGATIVE ACTIVI-

TIES OF A UNITED STATES ATTORNEY

In any event, this lawsuit is “nonjusticiable” under

Article III of the Constitution, which limits the federal

courts to the exercise of “judicial Power.” At least in the

absence of legislation imposing restrictions and creating

rights of action concerning the way in which the Execu-

tive performs its criminal investigative functions, the

prosecutorial power, which necessarily encompasses pre-

indictment decisions concerning whether, when, and how to

investigate possible criminal activity, is committed to the

Executive Branch. Actions which are themselves coercive

in nature, impinging in a direct way on existing legal

rights, are generally subject to judicial challenge as the

means of redeeming those rights. But until the Executive

Branch engages in-such coercive activity, its actions are

not of a form appropriate for judicial review. Internal,

deliberative activities of the Executive Branch are neither

final nor authoritative and thus do not provide an appro-

priate focus for review by courts of limited jurisdiction.

Nor, in the absence of legislation creating a right of

action to enforce specific rules concerning the perform-

ance of such noncoercive deliberative actions, are there

judicially manageable standards by which courts could

review them. Allowing judicial review in these circum-

stances would, therefore, short-circuit the criminal in-

vestigative process and impose an inappropriate task on

the judiciary.

A. Article III Of The Constitution Respects The

Separation Of Powers Between The Executive And

Judicial Branches

The Constitution is structured to give each Branch of

government specified powers in relation to the other

Branches. See The Federalist No. 51, at 320 (J. Madi-

son). It ensures that each Branch is confined by a set of

“checks” and “balances” to its respective authority. See

Bowsher v. Synar, No. 85-1377 (July 7, 1986), slip op.

6-7; Buckley v. Valeo, 424 U.S. 1, 120-124 (1976) (per

euriam) ; INS v. Chadha, 462 U.S. 919, 960-963 (1983)

(Powell, J., concurring in the judgment); Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)

(Jackson, J., concurring) ; The Federalist No. 47, at 325

(J. Madison) (C. Rossiter ed. 1961). The separation of

powers also ensures that the involvement of one Branch

in the affairs of another Branch is limited and carefully

defined. See Allen v. Wright, 468 U.S. 787, 750-752

(1984); Northern Pipe Line Co. v. Marathon Pipeline

Co., 458 U.S. 50, 57-62 (1982) (plurality opinion) ;

Humphrey’s Executor v. United States, 295 U.S. 602,

629-631 (1935); O’Doneghue v. United States, 289 U.S.

516, 530-534 (1933). Article III of the Constitution

embodies and implements both aspects of this separation

of powers.

Article III does not grant the federal courts “an uncon-

ditioned authority to determine the constitutionality of

legislative or executive acts” (Valley Forge Christian

College v. Americans United For Separation of Church &

State, Inc., 454 U.S. 464, 471 (1982)). Rather, Article

III limits the courts to the exercise of “judicial Power”

in “Cases” and “Controversies.” U.S. Const. Art. ITI,

§ 2, Cl. 1. The terms “judicial Power” and “Cases and

Controversies” reflect historical practices that have long

limited courts to a role that is “ ‘strictly judicial in its

character’” (Muskrat v. United States, 219 US. 346,

355 (1911), quoting Gordon v. United States, 117 U.S.

697, 706 (1864) ). See also 2 The Records of the Federal

Convention of 1787, at 480 (M. Farrand ed. 1966). Un-

der these historic practices, federal courts have been con-

fined to “a role consistent with a system of separated

powers and [to disputes] which are traditionally thought

to be capable of resolution through the judicial process”

(Flast v. Cohen, 392 U.S. 83, 97 (1968) ).

This Court has developed various doctrines to explain

the circumstances in which “Cases” or “Controversies”

may be said to have “assume[d] such a form that the

judicial power is capable of. acting on [them]” (Osborn v.

United States Bank, 22 U.S. (9 Wheat.) 738, 819

(1824)). See generally Flast v. Cohen, 392 U.S. at 97.

Through “standing” doctrine, for example, the Court has

instructed that the authority of federal courts may be

invoked only to address distinctly personal grievances,

and not to address “ ‘generalized grievances about the

conduct of government or the allocation of power in the

Federal System’ ” (United States v. Richardson, 418 U.S.

166, 173 (1974) (citation omitted)). See also Allen v.

Wright, 468 U.S. at 753-756; Linda R.S. v. Richard D.,

410 U.S. 614, 619 (1973). Likewise, through “moot-

ness” doctrine, the Court has taught that federal courts

may intervene only to resolve actual disputes and may

not render advisory decisions concerning questions of

abstract interest. See Burke-v. Barnes, No. 85-781 (Jan.

14, 1987), slip op. 3-4; Hall v. Beals, 396 U.S. 45, 48

(1969). Furthermore, through “ripeness” doctrine, the

Court has admonished that federal courts may address

only “final and authoritative” governmental actions (Mac-

Donald, Sommer & Frates v. County of Yolo, No. 84-2015

(June 25, 1986), slip op. 7); federal courts must, this

Court has said, avoid “entangl[ement] * * * in abstract

disagreements over administrative policies” (Abbott

Laboratories v. Gardner, 387 U.S. 186, 148 (1967) ).

And, finally, through “political question” and similar doc-

trines, the Court has made clear that some issues lack

judicially manageable standards and thus must be held to

“lie[] beyond judicial cognizance” altogether (Baker v.

Carr, 369 U.S. 186, 211 (1962)). See Goldwater v. Car-

ter, 444 U.S. 996 (1979); Coleman v. Miller, 307 U.S.

433 (1939). See also Barenblatt v. United States, 360

U.S. 109, 112 (1959).

These doctrines of‘ ‘standing[,} * * * mootness, ripe-

ness, political question, and the like—relate in part, and

in different though overlapping ways, to an idea, which

is more than an intuition but less than a rigorous and

explicit theory, about the constitutional and prudential

limits to the powers of an unelected, unrepresentative

judiciary in our kind of government’ ” (Allen v. Wright,

468 U.S. at 750, quoting Vander Jagt v. O’Neill, 699 F.2d

1166, 1178-1179 (D.C. Cir. 1982) (Bork, J., concurring),

cert. denied, 464 U.S. 823 (1983)). These doctrines rec-

ognize that certain questions about the structure and

operation of government are beyond the “judicial Power”

(Powell v. McCormack, 395 U.S. 486, 516-549 (1969) ),

and that “ ‘[r]epeated and essentially head-on confronta-

tions between the life-tenured branch and the representa-

tive branches of government will not, in the long run, be

beneficial to either’” (Valley Forge Christian College v.

Americans United for Separation of Church & States,

Inc., 454 U.S. at 473-474) (citation omitted)). They

therefore join together to “define[] with respect to the

Judicial Branch the idea of separation of powers on which

the Federal Government is founded,” and to state ‘“‘funda-

mental limits on [the] federal judicial power in our sys-

tem of government” (Allen v. Wright, 468 U.S. at 750).

See generally Warth v. Seldin, 422 U.S. 490, 498 (1975)

(these doctrines are “founded in concern about the

proper—and properly limited—role of th courts in a

democratic society”’) .

B. Absent Legislation Creating Judicially Enforceable

Rights And Providing Applicable Standards, The

Judicial Branéh Exceeds Its Constitutional Author-

ity When It Supervises Or Reviews The Noncoercive

Information-Gathering And Deliberative Activities

Of The Executive Branch

The authority of the judicial branch to oversee the

activities of the coordinate branches is thus limited by a

constellation of doctrines to situations where a question

amenable to legal analysis has been focused in a concrete

manner by a specific controversy between interested

parties. At least in the absence of legislation creating

judicially enforceable rights and providing applicable

standards concerning the prosecutor’s performance of his

investigative functions, we submit that these requirements

of justiciability are not met where a criminal investiga-

tion has not yet taken the form of coercive or publicly

accusatory action.

1. Article II of the Constitution vests the Executive,

not the Judiciary, with the exclusive authority to “take

Care that the Laws be faithfully executed.” U.S. Const.

Art. II, § 3. This delegation has long been held to in-

clude the power to prosecute—i.e., the authority to decide

whether, when, and in what sort of cases to charge a

violation of the laws of the United States. See, e.9.,

United States v. Batchelder, 442 U.S. 114, 124 (1979)

(““[w]hether to prosecute and what charge to file or bring

before a grand jury are decisions that generally rest in

the prosecutor’s discretion”); Bordenkircher v. Hayes,

434 U.S. 357, 364 (1978) (footnote omitted) (assuming

probable cause, decision whether and what to charge

“rests entirely in [the prosecutor’s] discretion”) ; United

States v. Nixon, 418 U.S. 683, 693 (1974) (the “Execu-

tive Branch has exclusive authority and absolute discre-

tion to decide whether to prosecute a case”); United

States v. Thompson, 251 U.S. 407 (1920) (court order

quashing indictment for failure to obtain permission of

court to resubmit to grand jury invades functions of the

United States Attorney and the grand jury) ; Confisca-

tion Cases, 74 U.S. (7 Wall.) 454, 457 (1868) (“[p]ublic

prosecutions, until they come before the court to which

they are returnable, are within the exclusive direction of

the district attorney”).

The textual responsibility to see that the laws are

faithfully executed requires the Executive Branch to “ob-

tainf ], review[ ], and evaluat[e] * * * evidence”

(Imbler v. Pachtman, 424 U.S. 409, 431 n.33 (1976) ).

See Community for Creative Non-Violence v. Pierce, 786

F.2d 1199, 1201 (D.C. Cir. 1986) (“The power to decide

when to investigate, [like the power to decide] when

to prosecute, lies at the core of the Executive’s duty to

see to the faithful execution of the laws.”); Nathan V.

Smith, 737 F.2d 1069, 1079 (D.C. Cir. 1984) (Bork, J.,

concurring) (“the principle of Executive control extends

to all phases of the prosecutorial process”). Indeed, the

responsible exercise of the power to prosecute presumes

that an investigation will precede the filing of charges.

See United States v. Goodwin, 457 U.S. 368, 382 n.14

(1982) (“a prosecutor should not file any charge until

he has investigated fully ail of the circumstances sur-

rounding a case”) ; Forsyth v. Kleindienst, 599 F.2d 1203,

1215 (3d Cir. 1979), cert. denied, 453 U.S. 913 (1981)

(“the decision of the Attorney General, or a prosecuting

attorney, to initiate a prosecution is not made in a

vacuum. * * * [T}he right to make the decision * * *

must include some limited right to gather necessary in-

formation”). Accordingly, the lower federal courts have

routinely rejected the notion that the courts may exer-

cise general supervision over the investigative activities

of the Executive Branch. See Reporters Committee for

Freedom of the Press v. American Telephone & Tele-

graph, 593 F.2d 1030, 1065 (D.C. Cir. 1978), cert.

denied, 440 U.S. 949 (1979); Socialist Workers Party V.

Attorney General, 510 F.2d 258, 255 (2d Cir. 1974) (per

curiam), motion for stay denied, 419 U.S. 1314 (1974)

(Marshall, J.) ; LaRouche v. Webster, 566 F. Supp. 415,

418 (S.D.N.Y. 1983) ; see also Jett v. Castaneda, 578 F.2d

842, 845 (9th Cir. 1978).

2. This is not to suggest that the performance of in-

vestigative or prosecutorial activities by the Executive

Branch is in all instances immune from judicial review.

It may well be within the power of Congress to impose

substantive limitations on the means used by the Execu-

tive Branch in its enforcement of legislatively enacted

criminal provisions and, in doing so, to provide for judi-

cial enforcement. In the absence of such congressional

action, however, judicial review is appropriate only at

such time as the Executive Branch engages in concrete

and coercive action. -

Once a prosecution has been formally initiated, either

by the filing of an information or by the return of an

indictment, an aggrieved individual is clearly entitled to

challenge his or her prosecution on a variety of constitu-

tional or procedural grounds, including the motivations of

the prosecutor in bringing it. See Wayte v. United States,

470 U.S. 598, 608 (1985); Bordenkircher v. Hayes, 434

U.S. at 364; Blackledge v. Perry, 417 U.S. 21, 28 (1974).

Moreover, even prior to the bringing of charges, certain

exercises of governmental power may be subjected to ju-

dicial review. A federal court may, for example, review

claims that the Executive Branch has committed an un-

reasonable “search” or “seizure” (see Bivens v. Six Un-

known Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971)), or has attempted to subpoena ma-

terial in violation of the First or Fourth Amendments

(see Oklahoma Press Publishing Co. v. Walling, 327 U.S.

186, 208 (1946) ; ef. Branzburg v. Hayes, 408 U.S. 665,

707-708 (1972) (prosecutor may not use grand jury and

its subpoena powers as instrument of oppression) ).

Review and supervision of information-gathering and

deliberation within the Executive Branch—in the absence

of coercive action or legislatively created rights and stan-

dards of review—is not, however, an appropriate exercise

of judicial authority. See Laird v. Tatum, 408 U.S. 1,

11-15 (1972); Heckler v. Chaney, 470 U.S. 821, 831-834

(1985). At issue is Executive Branch action that has not

come to fruition, whose justifications are still being ex-

plored and whose consequences are only vaguely perceiv-

able. And, as this Court has made clear in analogous

contexts, when the Executive Branch “does not exercise

its coercive power over an individual’s liberty or property

rights,” it “does not infringe upon areas that courts often

are called upon to protect” (id. at 832 (emphasis in orig-

inal) ).

In Laird v. Tatum, 408 U.S. 1 (1972), for example,

the Court faced the question ‘whether the jurisdiction of

a federal court may be invoked by a complainant who

alleges that the exercise of his First Amendment rights

is being chilled by the mere existence, without more, of a

governmental investigative and data-gathering activity

that is alleged to be broader in scope than is reasonably

necessary for the accomplishment of a valid governmental

purpose” (408 U.S. at 10). The Court answered this

question in the negative, reasoning that the investigative

and data-gathering activities of the Department of Army

at issue there were not “regulatory, proscriptive, or com-

pulsory in nature” (id. at 11) and, accordingly, that the

private citizen-plaintiffs were not entitled “ ‘to invoke the

judicial power to determine the validity of [such] execu-

tive * * * action’” (id. at 13, quoting Ex parte Levitt,

302 U.S. 633, 634 (1937)). Otherwise, the Court con-

cluded, “the federal courts [would be] virtually continu-

ing monitors of the wisdom and soundness of Executive

action” (408 U.S. at 15).

Similarly, in FTC v. Standard Oil Co., 449 U.S. 282

(1980), the Court applied the Administrative Procedure

Act, 5 U.S.C. (& Supp. III) 701 et seg. (APA), in finding

no “final agency action” subject to judicial review in the

Federal Trade Commission’s issuance of a complaint that

it had “reason to believe’ that several major oil com-

panies were violating Section 5 of the Federal Trade

Commission Act. The Court reasoned that “the Com-

mission’s averment of ‘reason to believe’ * * * [was] not

a definitive statement of position” (449 U.S. at 241),

but rather “a threshold determination that further in-

quiry is warranted” (ibid.), and that, since this deter-

mination has no “legal or practical effect” except to im-

pose a “burden of responding to the charges made against

it” (id. at 242), judicial review would be premature, an

“interference with the proper functioning of the

agency[,] and a burden for the courts” (ibid.).

3. The concerns articulated in Laird and Standard

Oil, justifying the conclusion that a “final” and “authori-

tative’ decision must be made before judicial review may

occur under either the Constitution or the APA, strongly

suggest that judicial review in the present case is like-

wise premature. “A court cannot determine whether a

regulation has gone ‘too far’ unless it knows how far the

regulation goes’ (MacDonald, Sommer & Frates Vv.

County of Yolo, slip op. 7). It cannot judge whether

government has unnecessarily chilled First Amendment

activity when government itself has not engaged in a de-

finitive act. The court would need information that is be-

yond its reach (because it has yet to be gathered by the

Executive Branch)—such as the extent of the problem to

be addressed, the cause of the problem, the alternative

means for resolving that problem, and the viability of

those alternatives. See Laird v. Tatum, 408 U.S. at 11,

13-15. Likewise, a court cannot judge whether govern-

ment has engaged in unconstitutional “selective prosecu-

tion” until alleged law offenders are actually being pros-

ecuted in the first instance. Again, the court would

need information that is beyond its reach (because it has

yet to be gathered by the Executive Branch)—such as

the identity and composition of the entire group of law

offenders, the circumstances of each offender’s violation,

and the bars to prosecution of particular offenders (as

viewed by the Executive Branch). See Wayte v. United

States, 470 U.S. at 609-610; Oyler v. Boles, 368 U.S. 448,

456 (1962). The courts need a final determination by the

Executive Branch, thus committing it to action, to pro-

vide the “focus for judicial review” (Heckler v. Chaney,

470 U.S. at 832).

The concerns articulated in Laird and Standard Oil

also relate to the absence of judicially discoverable and

manageable standards for reviewing the manner and

scope of noncoercive deliberative activities of the Execu-

tive Branch. See Wayte v. United States, 470 U.S. at

608; Heckler v. Chaney, 470 U.S. at 830-832; see gen-

erally Baker v. Carr, 369 U.S. at 226. The data-gather-

ing and deliberative aspects of government investigations

are preliminary and are often initiated in response to

tips, rumors, and other information that is often unre-

liable and may, upon investigation, turn out to be false.

On that account, they are necessarily fluid and unstruc-

turable, evolving according to the information that they

uncover. See United States v. Goodwin, 457 U.S. 368,

380-382 & n.14 (1982). Their scope, intensity, and dura-

tion varies with the resources that the Executive Branch

has available to devote to them. And the availability of

such resources varies with the Executive Branch’s over-

all agenda, the likelihood that the investigation will un-

cover prosecutable crimes, and the state of current fund-

ing by Congress. There are no accessible principles indi-

cating how the Executive Branch should respond to this

array of considerations. Accordingly, this Court has said

that the question of how the government should proceed

in view of all of these factors is “not readily susceptible

to the kind of analysis the courts are competent to under-

take” (Wayte v. United States, 470 U.S. 598, 607

(1985) ). :

Taken together, these concerns indicate that subject-

ing noncoercive data-gathering and deliberative activi-

ties to judicial scrutiny will spell great mischief for

the orderly administration of law by both the Executive

and Judicial Branches. Persons likely to be investigated

or prosecuted have an overwhelming incentive to short-

circuit the processes by which information is gathered

concerning their criminal activity, and authorizing judi-

cial review of preliminary data-gathering activities

would create a powerful tool toward that end.* Through

such litigation, such persons could divert both courts’ and

prosecutors’ “energy and attention * * * from the pressing

duty of enforcing the criminal law” (Imbler v. Pacht-

man, 424 U.S. 409, 425 (1976)), deny prosecutors the

opportunity to correct their own mistakes (FTC v. Stand-

ard Oil Co., 449 U.S. at 243), and “delay[] the crimi-

nal proceeding” (Wayte v. United States, 470 U.S. at

607). Prosecutors would thus be given an incentive to

avoid these problems by foregoing investigations of par-

ticularly obstreperous litigants, by resorting to the grand

jury to investigate possible criminal activity (rather than

use the less expensive and perhaps less intrusive means

available to prosecutors’ offices),” or, if necessary, by

18 Litigants might also try to use such litigation to discover the

identity of, and thus to intimidate, the Executive Branch’s in-

formants. The Court has noted a similar concern in its grand jury

cases. See United States v. Sells Engineering Inc., 463 U.S. 418,

424 (1983). See generally Roviaro v. United States, 353 U.S. 53

(1957) (discussing informants’ privilege).

19 A grand jury, of course, has “wide latitude to inquire into

violations of criminal law” and to “determine alone the course of

its inquiry” (United States v. Calandra, 414 U.S. 338, 348 (1974)).

Grand jurors “may act on tips, rumors, evidence offered by the

prosecutor, or their own personal knowledge” (United States v.

Dionisio, 410 U.S. 1, 15 (1973)), and “a sufficient basis for an

indictment may only emerge at the end of the investigation when

all the evidence has been received” (id. at 15-16). See also Costello

v. United States, 350 U.S. 359, 362, (1956). Importantly, the Court

has held that the federal courts are without authority to review the

competency, relevancy, or constitutionality of the evidence that a

grand jury considers (see United States v. Calandra, 414 U.S. at

344-345, 353-355), to assess the basis upon which a grand jury has

pursuing prosecutions without having fully investigated

all circumstances surrounding a case. See generally

United States v. Goodwin, 457 U.S. at 381-382 & n.14;

Butz v. Economou, 438 U.S. 478, 509-517 (1978) ; United

States v. Lovasco, 431 U.S. 788, 792-796 (1977) ; Imbler

v. Pachtman, 424 U.S. at 424-481. The avoidance of these

unfortunate consequences is yet another reason that the

“judicial Power” should not be construed to authorize

review of noncoercive Executive Branch activities.

initiated an investigation (see United States v. Dionisio, 410 US.

at 13-17), or to “set limits to the investigation that the grand jury

may conduct” (Blair v. United States, 250 U.S. 273, 282 (1919)).

Rather, only the coercive aspects of a grand jury’s investigation (as

that coercion applies to the person affected) may be challenged.

See United States v. Dionisio, 410 U.S. at 11-12, 16-18; Hale v.

Henkel, 201 U.S. 48, 76 (1906); see also Branzburg v. Hayes, 408

U.S. at 707-708.

The parallel between the limits on judicial review of grand jury

investigations and the limits on judicial review of Executive Branch

investigations is not accidental. As this Court has said, “‘“[t]he

public prosecutor, in deciding whether a particular prosecution

shall be instituted or followed up, performs much the same func-

tion as a grand jury”’” (Butz v. Economou, 438 U.S. 478, 510

(1978), quoting Yaselli v. Goff, 12 F.2d 396, 404 (2d Cir. 1926)

(citation omitted)). Indeed, the Court has pointed out that the

grand jury depends “largely on the prosecutor’s office to secure the

evidence or witnesses it requires” (United States v. Sells Engineer-

ing, Inc., 463 U.S. 418, 430 (1983) (footnote omitted) ). Thus, it

should be no surprise that the prosecutor, like the grand jury, “must

be free to pursue [his] investigation unhindered by external in-

fluence or supervision * * *” (United States y. Dionisio, 410 U.S.

at 17).

Indeed, an irony here is that, based on the information he had

received, it would have been entirely appropriate for Russoniello

to have conducted his investigation through a grand jury. Rus-

soniello’s discretionary decision to proceed less formaliy is fully in

keeping with this Court’s admonition that “[e]nforcement officials

taking the initiative in grand-jury proceedings * * * should be

sensitive to the considerations making for wise exercise of such

investigatory power * * * where the noncoercive assistance of other

federal agencies may render it unnecessary to invoke the compulsive

process of the grand jury” (Hoffman v. United States, 341 U.S.

479, 485 (1951)). See also United States v. Mara, 410 U.S. 19, 44

(1973) (Marshall, J., dissenting).

iia aad

It is no answer to these arguments that non-coercive

investigative activity is often a cause for concern to

those upon whom it focuses. Certainly few people wel-

come the opportunity to be a target or subjeci of official

inquiry. And some may greatly resent, for legitimate or

illegitimate reasons, the incompleteness of an investigation

or the criteria upon which that investigation is based.”

As is their right, these people sometimes make their views

known to whatever combination of the political branches

and the press seems most availing, and they are not with-

out substantial remedies in these fora.“ Failing relief

there, however, the fear and resentment that results from

being involved in or identified with a criminal investiga-

tion is simply “ ‘part of the social burden of living under

government’” (Petroleum Exploration, Inc. v. Public

Service Comm’n, 304 U.S. 209, 222 (1938) (citation and

footnote omitted)). See FTC v. Standard Oil Co., 449

U.S. at 244; Younger v. Harris, 401 U.S. 37, 46-47

20 The affidavits that respondents have submitted indicate that

the investigation of persons requesting bilingual ballots has made

members of the Hispanic-American and Chinese-American com-

munities in the San Francisco Bay Area “angry” (J.A. 58, 76),

“outraged” (J.A. 76), “upset” (J.A. 52, 58, 227, 228), “bothered”

(J.A. 227), “deeply concerned” (J.A. 33), and “indignant” (J.A.

222). They fear that they will be “contacted” (J.A. 45); they

“resent government interference with [their] right to privacy”

(J.A. 49); and they do not want “to be bothered in that way”

(J.A. 52).

21The Justice Department, for example, has an Office of Pro-

fessional Responsibility, as well as an Office of Public Integrity,

and has long maintained procedures under which complaints may

be filed against United States Attorneys. See 28 C.F.R. 0.39. More-

over, the American Bar Association has promulgated special stand-

ards to guide the conduct of prosecutors. See Model Code of Profes-

sional Responsibility EC 7-13 (1980). This Court has accordingly

stated that “a prosecutor stands perhaps unique, among officials

whose acts could deprive persons of constitutional rights, in his

amenability to professional discipline by an association of his

peers” (Imbler v. Pachtman, 424 U.S. at 429 (footnote omitted) ).

See also Malley v. Briggs, No. 84-1586 (Mar. 5, 1986), slip op. 7 n.5.

(1971); Cobbledick v. United States, 309 U.S. 323, 325

(1940) ; ef. United States v. Marion, 404 U.S. 307, 320-

321 (1971) (“Arrest is a public act that may seriously

interfere with the defendant’s liberty[.] * * * Until

this event occurs, a citizen suffers no restraints on his

liberty and is not the subject of public accusation: his

situation does not compare with that of a defendant who

has been arrested and held to answer.’’) ; Blair v. United

States, 250 U.S. 278, 281 (1919) (“the giving of testi-

mony and the attendance upon court or grand jury in

order to testify are public duties * * * [andj [t]he per-

sonal sacrifice involved is a part of the necessary con-

tribution of the individual to the welfare of the pub-

lic’). Allegations of “chill” and “stigma” from a crimi-

nal investigation can create a justiciable controversy only

when they are connected to “regulatory, proscriptive, or

compulsory” action of government. See Laird v. Tatum,

408 U.S. at 11; Heckler v. Chaney, 470 U.S. at 832.

C. The Government Officials Involved In This Investi-

gation Did Not Subject Respondents To Any Coer-

cive Government Action

In this case, it is quite clear that respondents were not

subjected to any such “regulatory, proscriptive, or com-

pulsory” investigative or prosecutorial action. The gov-

ernment officials did not seek a warrant or otherwise

conduct any search or seizure of respondents’ persons or

premises. They did not compel respondents to provide

information by subpoena or custodial interrogation. And

they did not bring any criminal charges.” Rather, Rus-

22 Russoniello suggested in his letter to the district attorneys

that he would seriously “consider” prosecuting any group or in-

dividual who had deliberately conspired to register unqualified

voters. J.A. 23. But Russoniello made this suggestion without

knowing the identities of the respondents (or the identities of any

other person whom he could prosecute). Thus, he did nothing more

than make an impersonal statement that, if he discovered federal

law was being violated, he would enforce it.

soniello requested that the voter registrars of the nine

counties randomly select from public records and submit

to him the names of 25 recently-registered foreign-born

voters who had requested bilingual election materials;

the INS then searched its own records (and the records

of the FBI) and verified the citizenship status of the

names submited to Russoniello; and, on receiving the

INS’s report from Russoniello, the district attorneys con-

ducted noncustodial interviews of various individuals

whom INS had been unable positively to identify as citi-

zens. As the district court noted, “all of the information

provided by the local defendants and the INS [was] a

matter of public record” (Pet. App. 84a); all interviews

and contacts were voluntary and non-custodial (id. at

80a-81a) ; “nor is there any evidence as to any individual

being penalized in any way for refusing to cooperate”

(id. at 81a). In short, there is no basis for suggesting

that the government here took coercive action against

anyone. Accordingly, the courts below should not have

entertained respondents’ challenge to the manner and

scope of this voter registration fraud investigation.

*8 Indeed, respondents introduced the declaration of only one

person who was actually contacted by the government—Lilia Isabel

Medina—and nothing in her testimony evidences any coercion being

applied by the government. See J.A. 221-226. There is no evidence

in the record indicating that the government even contacted re-

spondent Olagues. See J.A. 42-46 (Declaration of Jose J. Olagues)

(expressing fear that the government might contact him). On the

contrary, the record indicates that the government had no reason

to contact Olagues, since the INS’s records showed that he was in

fact a citizen. See J.A. 68.

III. EVEN IF JUDICIAL REVIEW OF NONCOERCIVE

INVESTIGATIVE ACTIVITIES IS PERMISSIBLE

IN CERTAIN CIRCUMSTANCES, EQUITABLE RE-

LIEF IS NOT AVAILABLE WHERE, AS HERE,

THOSE INVESTIGATIVE ACTIVITIES WERE NOT

CONDUCTED IN BAD FAITH OR FOR THE PUR-

POSE OF HARASSMENT, DO NOT VIOLATE ANY

CLEARLY ESTABLISHED RIGHTS, AND ARE

NOT DEVOID OF LEGITIMATE INVESTIGATIVE

PURPOSE

Assuming, arguendo, that respondents’ challenge to the

manner and scope of a United States Attorney’s non-

coercive investigative activities presents a justiciable con-

troversy, the court below nevertheless erred in remand-

ing on the question of whether injunctive or declaratory

relief should issue. This Court has long held that state

law enforcement efforts may be enjoined or declared un-

constitutional only in “extraordinary circumstances,” that

is, where the law enforcement activities create a threat

of irreparable injury that is “great and immediate,” and

have been conducted in bad faith or for purposes of

harassment. No lesser restriction on judicial power

should apply where federal criminal investigative activi-

ties are concerned. Since no such “extraordinary cir-

cumstances” can be found on the undisputed facts of this

case, a remand is neither necessary nor permissible.

A. It is a “ ‘basic doctrine of equity jurisprudence

that courts of equity should not act, and particularly

should not act to restrain a criminal prosecution, when

the moving party kas an adequate remedy at law’” and

will not suffer irreparable injury if denied equitable re-

lief (Pennzoil Co. v. Texaco, Inc., No. 85-1798 (Apr. 6,

24 Specifically, the court of appeals directed the district court to

determine whether Russoniello’s investigation employed the least

restrictive means available, whether the investigation unduly bur-

dened respondents’ fundamental right to vote, and whether the

government’s interest in preventing voter registration fraud out-

weighs respondents’ First Amendment rights (Pet. App. 19a, 20a,

23a).

1987), slip op. 7, quoting Younger v. Harris, 401 U.S.

37, 48-44 (1971)). This doctrine “prevent[s] erosion of

the role of the jury and avoid[s] a duplication of legal

proceedings and legal sanctions where a single suit would

be adequate to protect the rights asserted” (Younger Vv.

Harris, 401 U.S. at 44). Thus, this Court has long held

that “in the absence of exceptional circumstances creat-

ing a threat of irreparable injury ‘both great and im-

mediate,’ a federal court must not intervene by way of

either injunction or declaratory judgment” in an ongoing

state criminal prosecution (Kugler v. Helfant, 421 U.S.

117, 123 (1975) ). See also Perez v. Ledesma, 401 U.S. 82,

85 (1971) (equitable relief against state prosecutions is

available “[{o]nly in cases of proven harassment or prose-

cutions undertaken by state officials in bad faith without

hope of obtaining a valid conviction and perhaps in other

extraordinary circumstances”); Trainor v. Hernandez,

431 U.S. 484, 446-447 (1977) (same).

While limitations on the equity power have been most

frequently articulated in cases dealing with the absten-

tion of federal courts from intervention in pending state

criminal cases (see, e.g., Trainor v. Hernandez, 431 U.S.

at 446-447; Kugler v. Helfant, 421 U.S. at 123-125;

Younger Vv. Harris, 401 U.S. at 48-44; Dombrowski v.

Pfister, 380 U.S. 479, 482 (1965)), this Court has also

recognized the importance of judicial restraint where

federal courts are asked to enjoin or declare unconstitu-

tional state law enforcement practices, even though no

criminal proceedings are pending. See, e.g., City of Los

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

U.S. 362, 379 (1976); O’Shea v. Littleton, 414 U.S. at

502. Thus, in Lyons, the Court rejected a prayer for

equitable relief against a state police department’s prac-

tice of applying “chokeholds” when making arrests,

noting that “a federal court may not entertain a claim

by any or all citizens who no more than assert that cer-

tain practices of law enforcement officers are unconstitu-

tional” (461 U.S. at 111), and that, “[i]n exercising

their equitable powers federal courts must recognize

‘{t]he swecial delicacy of the adjustment to be preserved

between federal equitable power and State administration

of its own law’” (id. at 112 (citation omitted) ). Like-

wise, in Rizzo, the Court held that a federal court abused

its equitable discretion in directing a police department

to revise its police manuals and procedures for handling

complaints of minority citizens, noting that “principles

of equity * * * militate heavily against the grant of an

injunction except in the most extraordinary circum-

stances” (423 U.S. at 379), and that “‘a major con-

tinuing intrusion of the equitable power of the federal

courts into the daily conduct of state criminal proceed-

ings is in sharp conflict with the principles of equitable

restraint?” (id. at 379-380 (quoting O’Shea v. Littleton,

414 U.S. at 502) ).*

A similar restriction on the federal judiciary’s exercise

of its equitable powers must be recognized where federal

criminal investigative activities are concerned. The sepa-

ration of powers concern to protect the Executive

Branch’s investigative and prosecutorial authority weighs

25In suggesting (Br. in Opp. 19-21) that the basic equity prin-

ciples underlying this Court’s decision in Younger v. Harris, 401

U.S. 37 (1971), do not apply where a state criminal proceeding is

not pending, respondents confuse the circumstances in which fed-

eral 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 ques-

tion where state proceedings that will culminate in judicial review

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

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

absence of such pending proceedings, the federal court may adjudi-

cate claims for monetary relief regardless of the circumstances

(unless an immunity exists). As Lyons, Rizzo and O’Shea demon-

strate, however, even where no state proceedings are pending,

federal court may not issue injunctive or declaratory relief against

law enforcement officials in the absence of “extraordinary circum-

stances.” See City of Los Angeles v. Lyons, 461 U.S. at 112; Rizzo

v. Goode, 423 U.S. at 379; O’Shea Vv. Littleton, 414 U.S. at 502.

heavily against the allowance of judicial challenges be-

fore any formal governmental action is taken. See Allen

Vv. Wright, 468 U.S. at 760 (quoting O’Shea v. Littleton,

414 U.S. 488, 499 (1974)) (“[e]ase-or-controversy con-

siderations * * * ‘obviously shade into those determining

whether the complaint states a sound basis for equitable

relief’ ”) ; City of Los Angeles v. Lyons, 461 U.S. at 105-

106 (same). Moreover, such governmental activities are

almost always less directly intrusive on the interests of

those on whom the investigation touches than is a pend-

ing prosecution where charges have been filed. See Heck-

ler v. Chaney, 470 U.S. at 832. Thus, while their reasons

differ somewhat from those articulated in Younger and

Lyons, the lower federal courts, with the exception of

the court below, have uniformly held that, to the extent

they are justiciable at all, federal criminal investigative

activities may be enjoined or declared unconstitutional

only in the most “extraordinary circumstances.” See, e.9.,

Reporters Committee for Freedom of the Press v. Ameri-

can Telephone & Telegraph, 593 F.2d 1030, 1065 (D.C.

Cir. 1978); Jett v. Castaneda, 578 F.2d 842, 845 (9th

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

(S.D.N.Y. 1983); see also Pollard v. Roberts, 283 F.

Supp. 248, 257 (E.D. Ark.), aff’d, 398 U.S. 14 (1968) ;

In re Grand Jury Subpoena to Central States, 225 F.

Supp. 923, 925 (N.D. Ill. 1964). See also North v.

Walsh, 656 F. Supp. 414, 423 (D.D.C. 1987) (court will

ee ee

26 The Court has held that federal court interference with state

criminal prosecutions is generally inconsistent with notions of

“comity” and “our Federalism” (Younger v. Harris, 401 U.S. at .

44). The Court has recently made clear, however, that the “first

ground for the Younger decision was ‘the basic doctrine of equity

jurisprudence that courts of equity * * * should not act to restrain

a criminal prosecution[] when the moving party has an adequate

remedy at law’” (Pennzoil Co. v. Texaco, Inc., slip op. 7 (quoting

Younger v. Harris, 401 U.S. at 48)). Principles of comity and |

federalism were a “second explanation” (slip op. 7) that only “rein- ]

forced” the “underlying reason” for judicial restraint (Younger v.

Harris, 401 U.S. at 44).

— |

not enjoin investigation by special prosecutor where

plaintiff has not suffered an “injury of sufficient keen-

ness”), appeal pending No. 87-5058 (D.C. Cir.).

B. No such “extraordinary circumstances,” as defined

by this Court, are presented by the facts of this case.

Respondents have not shown the necessary “great and

immediate” irreparable injury. Nor have they introduced

any evidence showing that the investigation was conducted

in “bad faith,” for purposes of “harassment,” or in

flagrant and patent violation of express constitutional

prohibitions. See Younger v. Harris, 401 US. at 46, 53,

54; see also City of Los Angeles v. Lyons, 461 U.S. at 112.

Rather, the undisputed facts are to the contrary.

1. The injuries that respondents allege in this case

simply are not “great and immediate” within the mean-

ing of the Younger line of cases. Respondent Olagues is

an easy case in this respect. As Judge Wallace noted in

dissent (Pet. App. 29a), “the result of the investigation

was to demonstrate that [respondent Olagues] is a citi-

zen, legally registered to vote.” In such circumstances,

there is no reason to believe that the government will

again investigate Olagues as a possible noncitizen voter

(who might have information about persons or groups

attempting illegally to register noncitizen voters). Ac-

cordingly, even assuming that the “stigma” and “chill”

respondent Olagues alleges he has suffered by virtue of

the investigation is a basis for standing to seek mone-

tary relief, respondent Olagues has no basis at all for

seeking prospective equitable relief. See City of Los

Angeles v. Lyons, 461 U.S. at 105-106, 111; O’Shea v.

Littleton, 414 U.S. at 499-504.

The organizational respondents do not present a much

more difficult case. They claim that their voter registra-

tion and education activities were undermined by the

conduct of this investigation. Yet nothing in the record

indicates that the investigation ever specifically focused

on these organizations or subjected them (or their mem-

bers) to a reasonable threat of prosecution. Accordingly,

the “chilling effect” of which the respondent organizations

complain is insufficient to provide them with standing to

seek any relief, monetary or equitable. See Laird v.

Tatum, 408 U.S. at 13-14; Boyle v. Landry, 401 U.S. 77,

80-81 (1971) ; Davis v. Ichord, 442 F.2d 1207, 1214 (D.C.

Cir. 1970) ). Moreover, since the challenged information-

gathering activities ended five years ago and cannot real-

istically be expected to recur, it is especially clear that

the organizations lack standing to seek equitable relief.

See City of Los Angeles v. Lyons, 461 U.S. at 105-106,

jh F

Nor can the organizational respondents rely on the

special sensitivities of recently-registered foreign-born

persons who apparently fear that another investigation

will occur (see Pet. App. 7a-8a). “It is the reality of the

threat of repeated injury * * *, not * * * subjective

apprehensions” concerning it, that is relevant (City of

Los Angeles v. Lyons, 461 U.S. at 107, n.8). Accord,

O’Shea Vv. Littleton, 414 U.S. at 498; Steffel v. Thompson,

415 U.S. 452, 476 (1974), (Stewart, J., concurring) ;

cf. Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766, 778 (1983) (it is “extraordinarily

difficult for agencies to differentiate between ‘genuine’

claims of psychological health damage and claims that are

grounded solely in disagreement with a democratically

adopted theory”). The reality here is that the investiga-

tion is over.

In any event, even if the alleged “stigma” and “chilling

effects” are injuries sufficient to provide either Olagues

or the organizations with standing, they clearly do not

constitute the “great and immediate” irreparable injury

required by the Younger line of cases. The harms alleged

here are no greater than the injury “incidental to every

criminal proceeding brought lawfully and in good faith”

(Douglas v. City of Jeannette, 319 U.S. 157, 164 (1948) ) :

“the cost, anxiety, and inconvenience of having to defend

against a single criminal prosecution[] [cannot] by them-

selves be considered ‘irreparable’ in the special legal

sense of that term” (Younger v. Harris, 401 U.S. at 46)

Moreover, respondents have already been freed of any

stigma of criminal wrongdoing by the termination of the

investigation, and the collateral adverse effects of which

respondents complain were subject to a prayer for money

damages. See City of Los Angeles v. Lyons, 461 U.S. at

105-109, 111; FTC v. Standard Oil Co., 449 U.S. at 244-

245; Younger v. Harris, 401 U.S. at 46-47. Thus, the

“extraordinary remedies” of injunctive or declaratory

relief are simply unnecessary to remedy any injuries

alleged in this case. See Amoco Production Co. v. Gam-

bell, No. 85-1239 (Mar. 24, 1987), slip op. 9; Weinberger

v. Romero-Barcelo, 456 U.S. 305, 311-313 (1982).

29. Furthermore, the governmental action challenged

here was not conducted in bad faith, for the purpose of

harassing respondents, or in flagrant disregard of re-

spondents’ rights. The undisputed facts show that the

United States Attorney learned through public sources of

allegations that various persons or organizations may

have been conspiring fraudulently to register unqualified

voters. In following up on those indications of possible

criminal conduct, he naturally focused the “investigation

on persons who had registered at a time that illegal reg-

istrations may have been rampant and who, if they were

witnesses to criminal activity, would be more likely to

recollect details than would be long-registered noncitizen

voters” (Pet. App. 33a-84a). He did this by using ac-

cessible information from the voter registration form,

information reflecting foreign birth, recent registration,

and request for bilingual voting materials. Moreover,

he terminated the investigation when it failed to produce

evidence sufficient to justify further action (id. at 45a).

Thus, there is no basis for suggesting that Russoniello

engaged in any harassing or ill-motivated behavior.

That the criteria used to identify witnesses in some

sense “targeted” persons of Chinese-American and His-

panic-American descent does not justify anticipatory

judicial intervention. The Equal Protection Clause does

not require prosecutors to turn a blind eye to basic

descriptive facts relevant to suspected criminal conduct

or knowledge thereof. This Court has recognized that

law enforcement officials may consider group characteris-

tics and statistical profiles, including the national origin

or race of suspects and witnesses, in narrowing their in-

vestigations. See United States v. Brignoni-Ponce, 422

U.S. 873, 886-887 (1975); Wygant v. Jackson Board of

Education, No. 84-1340 (May 19, 1986), slip op. 24

(Stevens, J., dissenting); see also Hon Keung Kung V.

INS, 356 F. Supp. 571, 575 (E.D. Mo. 1973) (“common

sense [dictates] that race may be a relevant factor in

some circumstances in determining whether to question

a person about his immigration status”). Here, pre-

liminary information indicated that the greatest poten-

tial for voter registration fraud existed among “persons

who did not speak or understand the English language”

(J.A. 178). Accordingly, it was quite reasonable for

Russoniello to conclude that “recently-registered voters

from the Chinese-American and Hispanic-American com-

munities were most likely to be able to furnish him

with valuable information for the criminal investigation

of a pattern of illegal voter registration he had reason to

believe was occurring in those communities” (Pet. App.

34a-35a). Indeed, by focusing his investigation in this

fashion, Russoniello was able to narrow his inquiry and

avoid inconveniencing as many other persons as possible.

Even the opinion of the court below makes clear that

the government officials involved in this investigation did

not engage in the sort of bad faith, harassment, or other

extreme behavior that arguably would establish the “ex-

traordinary circumstances” necessary for enjoining or

declaring unconstituticnal the activities of a prosecutor.”

27 As noted above, this Court has held that the “extraordinary

circumstances” standard applies to prayers for declaratory as well

as for injunctive relief. See Kugler v. Helfant, 421 U.S. at 123-124;

Samuels v. Mackell, 401 U.S. 66, 72 (1971). See also Doran v.

Salem Inn, Inc., 422 U.S. 922, 930-931 (1975). Thus, while it is

true that there are some cases in which declaratory but not injunc-

tive relief may be granted (see Steffel v. Thompson, 415 U.S. 452,

The court below found that “the government has a com-

pelling interest in preventing voter registration fraud”

(Pet. App. 19a), that there was no evidence that the gov-

ernment intended to deny or abridge respondents’ right to

vote (id. at 21a), that respondents’ suit “raise[d] issues

of first impression” (id. at 24a), and that “the govern-

ment officials did not violate [any] ‘clearly establised’

rights” by the conduct of their investigation (ibid.). In

short, the court of appeals conceded that Russoniello’s

investigation was not conducted for purposes of harass-

ment, did not violate any clearly established rights, and

had not been shown to be without a legitimate investiga-

tive purpose. Accordingly, it should have held that the

requisite “extraordinary circumstances” were absent and

that neither injunctive nor declaratory relief could issue

in this case.

466-473 (1974) ), this clearly is not such a case. As Judge Wallace

noted in his original panel opinion, respondents are not “seeking

a declaration that * * * [their] voter registration activities are

lawful. Rather, they seek a declaration that the government’s ac-

tivities are unlawful. * * * In these circumstances, * * * [d]eclara-

tory relief * * would raise the same concerns regarding interfer-

ence with the activities of prosecuting officials [as the issuance of

injunctive relief would raise]” (Pet. App. 63a-64a).

CONCLUSION

The judgment of the court of appeals should be vacated

and the case remanded with instructions that respond-

ents’ prayers for injunctive and declaratory relief be dis-

missed as moot. Alternatively, the judgment of the court

of appeals should be reversed.

Respeetfully submitted.

‘

JULY 1987