Motion — Russoniello v. Olagues

Supreme Court, U.S.

pm FILED

JUL <2 1987

JOSEPH F. SPANIOL, JR.

GEERK

No. 86-1217

In The

Supreme Court of the United States

October Term, 1986

ty.

Vv

JOSEPH P. RUSSONIELLO, et al.,

Petitioners,

Vv.

JOSE J. OLAGUES, et al.,

Respondents.

ray

Vv

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

fa’

Vv

MOTION TO VACATE

ON GROUNDS OF MOOTNESS ,

a

Vv

ANTONIA HERNANDEZ ALAN L. SCHLOSSER*

E. RICHARD LARSON MARGARET C. CROSBY

DENISE M. HULETT EDWARD M. CHEN

Mexican American Legal American Civil Liberties Union

Defense and Education of Northern California, Inc.

Fund Suite 460

604 Mission Street, 10th Fl. 1663 Mission Street

San Francisco, CA 94105 San Francisco, CA 94103

(415) 543-5598 (415) 621-2493

RONALD T. VERA STEFAN M. ROSENZWEIG

200 S. Garfield California Rural Legal

Suite 200 Assistance

Alhambra, CA 91801 Suite 401

(213) 283-0185 2111 Mission Street

San Francisco, CA 94110

(415) 864-3414

Attorneys for Respondents

* Counsel of Record

COCKLE LA‘ BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342- 2831

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TABLE OF CONTENTS

PRELIMINARY STATEMENT ......

Page

THE CASE IS MOOT

CONCLUSION

ii

TABLE OF AUTHORITIES

Page

CasEs

Berkeley Police Assn. v. City of Berkeley,

76 Cal.App.3d 931, 143 Cal.Rptr. 255 (1977) —........ 4

Black Panther Party v. Kehoe, 42 Cal.App.3d 645,

117 Cal Baste. 206 (BIG) ccccesscenntenennnneienesatons 4

Diffenderfer v. Central Baptist Church,

404 U.S. 412 (1972) {per curiam) — 2. 6

Hall v. Beale, 306 US. 46 (IGG cine 8

Princeton University v. Schmid,

455 U.S. 100 (1982) (per curiam) 6

United States v. Alaska siaccassie wanes

253 U.S. 113 (1920) . sieesgpemamamaiiite 6

United States v. Munsingwear, 340 U.S. 36 (1950) ms ef

United States v. W. T. Grant Co., 345 U.S. 629 (1953) 7

Weinstein v. Bradford, 423 U.S. 147 ii

(per curiam) . scintahitncaiaiapeidme idan aapamae nage > ae

STATUTES

California Government Code (West Supp. 1987)

§ 6253.6 3,4

§ 6254 4

———

No. 86-1217

ray

“

In The

Supreme Court of the United States

October Term, 1986

77> ——

Vv

JOSEPH P. RUSSONIELLO, e¢ al.,

Petitioners,

Vs

JOSE J. OLAGUES, et al.,

Respondents.

fay

Vv

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

7 —

MOTION TO VACATE

ON GROUNDS OF MOOTNESS

tf.

Vv

In their brief on the merits, petitioners argue that the

instant case is moot and that the appropriate disposition

is to vacate the judgment of the court below. Respondents

agree. Accordingly, respondents respectfully move this

Court to vacate the judgment of the Court of Appeals be-

low and remand the case to the District Court with a di-

rection to dismiss the action. United States v. Munsing-

wear, 340 U.S. 36, 39 (1950). The grounds for this motion

are that the case has become moot as a result of a change

in California law.

co)

PRELIMINARY STATEMENT

The governmental conduct at issue in the instant case

was a voter fraud investigation carried out by the United

States Attorney and local district attorneys and voting

registrars in nine Bay Area counties. The means used to

carry out the investigation was a review by the voting

registrars of records of voters who had requested bilingual

election materials, and the random selection by each regis-

trar of 25 names of recently registered, foreign-born voters

who had requested bilingual materials. These names were

forwarded to the United States Attorney, who had the

citizenship status of these randomly selected individuals

investigated by the Immigration and Naturalization Ser-

vice. Unless this record check produced positive confirma-

tion of citizenship, such individuals were subjected to fur-

ther investigation by the local district attorney or the

FBI.

In the Brief For the Petitioners, petitioners argue

that this case is moot. (Pet. Br. 16-22). Petitioners assert

that the governmental conduct challenged by respondents

ceased in 1982, and has not recurred in the intervening

five years in spite of two federal elections subsequent to

1982. (Pet. Br. 18). Petitioners claim that the commence-

ment of the investigation of bilingual voters was brought

about by ‘‘unique conditions’’ that ‘‘no longer exist.’’

(Pet. Br. 21). Petitioners argue that there is no reason-

able likelihood that ‘‘the government would reinstitute any

similar investigation,’’ as the 1982 investigation was dis-

continued precisely because it was not successful in es-

tablishing evidence of voter fraud. (Pet. Br. 21). Finally,

petitioners point out that, due to a change in California

——— “ Qoeeermees

law (California Government Code, § 6253.6), ‘‘it thus ap-

pears that government officials could not collect voter

registration information in the same way as they did here,

even if they wanted to do so.’’ (Pet. Br. 21.) For these

reasons, petitioners conclude that this case is moot, and

that this Court should vacate the judgment of the court

‘below and remand to the District Court with instructions

to dismiss. (Pet. Br. 22.)

Because of the change in California law subsequent

to the bilingual ballot investigation, respondents agree

that this case is now moot and that the disposition urged

by petitioners is appropriate. As it now appears that there

is no dispute between the parties as to the question of

mootness, respondents are immediately bringing this mat-

ter to the Court’s attention by this motion.

THE CASE IS MOOT

Subsequent to petitioners’ investigation of bilingual

voters, the California Legislature amended the California

Public Records Act to make it explicit that voter requests

for bilingual ballots are not ‘‘public records,’’ and to

prohibit public_officials from disclosing information ‘‘re-

vealing the identity of persons who have requested bilin-

gual ballots’’ to ‘‘any person other than public officers

or public employees who are responsible for receiving

those requests and processing the same.’’ California Gov-

+

ernment Code, § 6253.6(a) (West Supp. 1987).' This

change in the law means, as petitioners recognize (Pet

Br. 21), that petitioners could not pursue an investigation

of bilingual voters in the same manner as the 1982 in-

vestigation.

Under this new statute, law enforcement officials

would not be able to institute a criminal investigation of

bilingual ballot requesters by simply requesting voting

registrars to select at random the targets of the investi-

gation. Rather, investigative officials would need a court

order or other form of legal process to obtain this in-

formation.? As petitioners themselves acknowledge, under

1California Government Code, 6253.6 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 ballot

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 person other

than public officers or public employees who are re-

sponsible for receiving those requests and processing

the same.” (Underscoring omitted.)

2The statutory scheme underscores the mandatory nature

of the legislative direction in Section 6253.6 that bilingual bal-

lot requests “shall not” be disclosed beyond local election of-

ficials. The Public Records Act delineates a number of cate-

gories of information that are exempt from disclosure. Cal.

Government Code, § 6254. Case law, however, made it clear

that these exemptions were permissive only, and that agencies

had the discretion to disclose the information. See Black Panther

Party v. Kehoe, 42 Cal.App.3d 645, 656, 117 Cal.Rptr. 106, 113

(1974); Berkeley Police Assn v. City of Berkeley, 76 Cal.App.3d

931, 941, 143 Cal.Rptr. 255, 262 (1977). Rather than treating

bilingual ballot requests as exempt under Section 6254 (thereby

permitting discretionary disclosure), the Legislature enacted a

mandatory prohibition against disclosure of what it deemed

non-public records.

<>

—

this new statute ‘‘it would be impossible for the U.S. At-

torney again to conduct a similar investigation without

court approval.’’ (Suggestion for Full En Bane Rehear-

ing filed in the Court of Appeals, October 8, 1986, at p.7)

(emphasis added).

This change in the law effected by the new statute

pertains directly to the governmental conduct challenged

in this case. Respondents have never disputed that peti-

tioners have the authority to investigate voter fraud, or,

more precisely, that they have the authority to investigate

whether non-citizens are illegally voting. Rather, respon-

dents’ complaint is with the means adopted to initiate

and pursue such an investigation—namely, the targeting

of randomly selected Chinese-speaking and Spanish-speak-

ing individuals solely on the basis that they have request-

ed a bilingual ballot and without any grounds to believe

that the individuals selected are involved in violations of

law. Under the new law, the voting registrars are pro-

hibited from complying with a request by the United States

Attorney to provide this information absent a court order

or legal process. Thus, California citizens are no longer

lawfully subject to becoming the target of a criminal in-

vestigation simply as a result of being randomly selected

from a list of bilingual ballot users at the request of a

law enforcement official acting in his unfettered dis-

eretion.?

3Respondents have argued, and still maintain, that a crim-

inal investigation which targets randomly-selected Chinese and

Hispanic bilingual voters based solely on their request for a

bilingual ballot constitutes a violation of rights guaranteed by

(Continued on following page)

As this Court has recognized, an intervening change

in the law which prevents or substantially alters the gov- .

ernmental action or conduct challenged in a case renders

moot claims for equitable relief against such action or

conduct. Thus, in reviewing a decision enjoining the In-

terstate Commerce Commission from prescribing the forms

of carriers’ bills of lading, this Court held that new legis-

lation which modified the powers of the ICC to prescribe

such bills rendered the case moot:

The subsequent legislation necessitates the adoption

of different forms of bills in the event that the power

of the Commission be sustained. This legislation,

having that effect, renders the case moot.

United States v. Alaska Steamship Company, 253 U.S.

113, 116 (1920); sée also, e.g., Diffenderfer v. Central

Baptist Church, 404 U.S. 412 (1972) (per curiam) ; Prince-

ton University v. Schmid, 455 U.S. 100, 103 (1982) (per

curiam).

(Continued from previous page)

the First Amendment and the Equal Protection Clause. Because

the new California statute substantially affects and restricts the

means that were used to conduct the 1982 bilingual voter in-

vestigaiion at issue in this case, vacating the judgment below

on grounds of mootness is an appropriate disposition of this

case. However, if this Court determines that the case is not

moot because of the likelihood of a recurring bilingual voter

investigation, respondents are entitled to equitable relief. A

discriminatory investigation against persons and groups exer-

cising fundamental voting rights constitutes sufficient ‘‘extraor-

dinary circumstances” and irreparable injury to warrant equi-

table intervention by a federal court.

The instant case thus goes beyond ‘‘voluntary cessa-

tion’? of a course of action by government officials.

United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953).

Rather, the change in the law prevents petitioners from

being able to use in the future the same method used to

conduct the 1982 investigation that was challenged by

respondents in this case. Thus, the effect of the new

statute is to vitiate any ‘‘reasonable expectation’’ that

the respondents will again be subject to the same type of

investigation instituted by a law enforcement official act-

ing in his unfettered discretion. Weinstein v. Bradford,

423 U.S. 147, 149 (1975) (ner ecuriam).4

Respondents recognize that the appropriate disposi-

tion of a moot case is that the judgment below is vacated

and the case remanded with a direction to disiniss. United

States v. Munsingwear, 340 U.S. at 39. As petitioners

and respondents thus agree that the case is moot and

that the judgment below should be vacated, this ‘‘case has

therefore lost its character as a present, live controversy

..”? Hall v. Beals, 396 U.S. 45, 48 (1969).

°

4In its en banc decision, the Court of Appeals ruled that

the case was not moot because ‘‘Russoniello continues to have

available to him the necessary bilingual ballot lists to conduct

a voter registration investigation similar to the one challenged

here.” (Pet. App. 9a). Due to the change in California law, how-

ever, these “necessary bilingual ballot lists’ are no longer

“available to him” pursuant to an investigation ‘similar to the

one challenged here.”

CONCLUSION

For these reasons, respondents respectfully move this

Court to vacate the judgment of the Court of Appeals and

remand this case to the District Court with instructions

to dismiss the action,

Respectfully submitted,

Awan L. Scrosser*

Marcaret C, Crossy

Epwarp M. Cuen

Antonia HERNANDEZ

E. Ricuarp Larson

Denise M, Huuerr

Steran M. Rosenzwetia

Ronavp T. VERA

Attorneys for Respondents

* (ounsel of Record