pl response to reply to defendants on magistrates objections

MUN SU PARK

LAW OFFICES OF PARK AND ASSOCIATES

Suite 102, Isla Plaza

388 South Marine Corps Drive

Tamuning, GU 96913

Tel: (671) 647-1200

Fax: (671) 647-1211

[email protected]

J. CHRISTIAN ADAMS

ELECTION LAW CENTER, PLLC

300 N. Washington St., Suite 405

Alexandria, VA 22314

Tel: (703) 963-8611

Fax: (703) 740-1773

[email protected]

MICHAEL E. ROSMAN

CENTER FOR INDIVIDUAL RIGHTS

1233 20th

St. NW, Suite 300

Washington, DC 20036

Tel: (202) 833-8400

Fax: (202) 833-8410

[email protected]

UNITED STATES DISTRICT COURT

DISTRICT OF GUAM ------------------------------------------------------------------------x

Arnold Davis, on behalf of himself and all others :

similarly situated,

:

Plaintiff, Civil Case No: 11-00035

:

v.

Guam, Guam Election Commission, et al.

: Plaintiff’s Reply

to Defendants’ Response to

Objections to Magistrate’s Defendants. : Report

------------------------------------------------------------------------x

Case 1:11-cv-00035 Document 56 Filed 08/22/12 of 12

1

COMES NOW the Plaintiff and offers this Reply to Defendants’ Response to Objections

(“Resp.”) to Magistrate’s Report.1

Issue Presented

This central ripeness question before this Court is when do the discriminatory provisions of

1 GCA § 2102 and § 2110 injure the plaintiff? Ninth Circuit law demonstrates that discriminatory

rules and declarations themselves cause Article III injuries and thus render this case ripe.

Argument

I. The Davis case in the CNMI was wrongly decided and is inconsistent with

authority binding upon this Court.

The Davis CNMI case was wrongly decided. The foundation of the Davis opinion was that

“no petition is on the November ballot. Davis therefore cannot show an injury in fact, and lacks

standing.” Davis, 2012 WL 2411252, *6. The district court relied on the two part ripeness test

in Texas v. United States, 501 U.S. 296, 301 (1998). The court considered first, the “fitness of the

issues for judicial decision,” and second, “the hardship of the parties on withholding court

1 Pursuant to the Scheduling Order of March 16, 2012, this case is set for a preliminary pre-trial conference

September 18, 2012 at 8:30 a.m. Undersigned counsel for plaintiff will be in attendance at that time and in Guam

through September 28, 2012. By Order of August 8, 2012, this Court has asked the Plaintiff to address, inter alia, the

case of Davis v. Commonwealth Election Commission, Case No. 12-CV-00001, 2012 WL 2411252 (D.N.M.I. June 26,

2012).

Two preliminary matters deserve brief mention. First, defendants’ response wrongly asserts that plaintiff’s

objections were untimely. Resp. 1. The Report and Recommendation (Doc. No. 43) was served on June 14, 2012 by

electronic means. Pursuant to Rules 6(d) and 72(a), plaintiff had seventeen days (fourteen plus three for electronic

service), or until July 1, 2012 to file objections. E.g., United States v. Hanrahan, 2010 WL 2292912, *1 n.1 (D.N.M.

April 28, 2010); Robinson v. City of Arkansas City, 2012 WL 1674255, *3 (D. Kan. May 14, 2012); Gorey v. Manheim

Services Corp., 2012 WL 760309, *5 (S.D.N.Y. Feb. 3, 2012); Toland v. Correctional Medical Services, Inc., 2010

WL 4683922, *3 n.2 (E.D. Mich. Nov. 10, 2010); Fed. R. Civ. P. 6(a). Since July 1 was a Sunday, the deadline was

July 2, 2012. Plaintiff filed his objections on July 1, one day early. Plaintiff asked defendants to withdraw this

frivolous contention so as to eliminate this Court’s need to give it attention, but defendants refused.

Second, defendants have claimed that plaintiff was previously authorized to reply to their response but

declined to do so. Doc. 55 at 6. In fact, neither Fed. R. Civ. P. 72 nor General Order 04-00016 authorizes a reply to

a response to objections under Rule 72 (and a clerk’s docket entry is hardly an adequate countermand to those rules).

Accordingly, plaintiff was only authorized to reply when this Court issued its August 9 Order.


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consideration.” Davis, 2012 WL 2411252, *5.

As in Davis, the case before this court also satisfies the first part of the ripeness test in Texas,

fitness for decision. “The issues in this case are fit for judicial decision. They deal almost

exclusively with questions of constitutional law.” Id. at *7. Similarly, this case is fit for

determination.

The district court in Davis, however, incorrectly found ripeness wanting based on the second

prong of Texas, “hardship to the parties.” “Plaintiff’s frustration is entirely based on a

hypothetical situation” because the CNMI legislature had never proposed a constitutional

amendment to be ratified. Id. This conclusion incorrectly disregards the hardship to the parties of

withholding judicial determination.

As Guam plaintiff Davis has argued in regards to standing, the Supreme Court and the Ninth

Circuit have held that when governments show disfavor to a protected group, even if the members

of that group suffer no tangible penalty or would receive no tangible benefit from equal treatment,

those group members have suffered an Article III injury, and also have a ripe case. Catholic

League for Religious and Civil Rights v. San Francisco, 624 F.3d 1043, 1052 (9th Cir. 2010); See

also, e.g., Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) (holding that the “discrimination

itself, . . . by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as

less worthy participants in the political community, can” create standing.). The causes of action

in Catholic League and Heckler were ripe when the government stigmatized citizens or engaged in

unequal treatment. Here, classifying some citizens as unworthy to participate in the political

process imposes a heavy burden precisely because it creates an Article III injury.


3

Defendants distinguish Catholic League by arguing that Guam is not engaged in speech

because the defendants have not endorsed any of the specific choices that voters in the plebiscite

will be able to choose from. Resp. 10. This argument misses the point entirely. The “speech”

here is embodied in the laws that send an unambiguous message that non-Native Inhabitants are

not worthy of participating in the decision that the plebiscite has been called to make. While the

government speech in Guam is not the same content as in Catholic League, it is at least as

discriminatory and stigmatizing, if not more so. In Catholic League, after all, the San Francisco

Board of Supervisors did not tell Catholics that there was some government process, good, or

service for which they were ineligible.2

It is important to note that defendants themselves, their lengthy citation of Davis

notwithstanding, appear to disagree with the result in Davis. In responding to plaintiff’s core

argument that he was injured by the denial of the right to register, defendants say “[i]f this

non-binding advisory plebiscite was intended to do anything more than ascertain and transmit the

desires of ‘native inhabitants’ defendants might tend to agree.” Resp. 7. And, of course, in the

CNMI the plebiscite was designed to do more than “ascertain and transmit desires.” It could

repeal a rule that prohibited the plaintiff from owning land. Indeed, defendants take great pains to

distinguish that part of Davis from the case here.3 So for defendants, the key to the so-called

2 Defendants also claim that standing in Establishment Clause cases is sui generis. Resp. 10. Again, binding

precedent demonstrates otherwise. While taxpayer standing may be unique to Establishment Clause cases, when

standing is based on the stigma caused by disfavorable government treatment, the principles are precisely the same as

in Equal Protection Clause cases. Barnes-Wallace v. City of San Diego, 530 F.3d 776, 786 n.6 (9th

Cir. 2008)

(holding that lesbians and agnostics had standing to challenge favorable lease of public lands to Boy Scouts; plaintiffs

were injured because they avoided the public facilities operated by the Boy Scouts, which had membership policies

that plaintiffs disapproved of) (citing Heckler v. Mathews).

3 See e.g., Resp. at 6: “[CNMI’s] John Davis’ injury-in-fact is tangible because the vote contemplated in the CNMI

will affect whether as a non-NMD he will ever be permitted to own property. As discussed previously . . . nothing in

the plebiscite currently contemplated in Guam law . . . will alter or affect Arnold Davis’ rights in any way.”


4

“ripeness” argument here is not the uncertainty of the date of the election, but rather the

purportedly inconsequential result of the vote. Simply put, defendants appear to agree with

plaintiff that registration denial is a separate harm, at least if something substantive is at stake.

And defendants are just wrong that courts must review elections to ascertain if the result might

affect “substantive” rights in order to determine standing or ripeness or any other part of

justiciability. Again, there was no substantive right at issue in Catholic League. Nor are there

obvious substantive consequences, aside from an expression of the will of the people, in many

elections. Some presidential primaries in 2012 were “beauty contests” – no delegates to the

conventions were selected as a consequence. See

http://millercenter.org/ridingthetiger/missouri-primary-beauty-contest. If Missouri had excluded

members of a given race from its Republican primary, defendants’ argument would lead to the

conclusion that those racially-disenfranchised voters could bring no Article III case or controversy

to challenge that policy. To state the argument is to refute it.

II. Even if Davis were decided correctly, plaintiff’s claims would still be ripe.

Even failing to address binding Ninth Circuit law, application of the two-part ripeness test in

Davis still militates in favor of plaintiff. The first prong of Texas is obviously satisfied as it was

in Davis.

The second prong in Texas is satisfied because the plebiscite has been set repeatedly. It was

set for 1998. Guam P.L. 23-147 (1997). The 1998 plebiscite did not simply fail to occur, as the

Report suggests, it was rescheduled to 2000, subject to the defendants’ preparation. See, Guam

P.L. 25-106. (“Section 21110. Plebiscite Date and Voting Ballot. On July 1, 2000 the Guam

Election Commission shall conduct a 'Political Status Plebiscite'.”); see also, Guam P.L. 25-146


5

(“The 'Political Status Plebiscite' mandated in Subsection (a) of this Section shall be held on

November 7, 2000.”). Between 1997 and 2000, Governor Carl T. C. Gutierrez scheduled the

plebiscite to occur on December 12, 1999. Then, the plebiscite was set for November 7, 2002,

and then again for 2004. The plebiscite that defendants characterize as speculative has been set

by law six times. Accordingly, this Court can, consistent with Davis, determine that the second

prong of Texas is satisfied by the fact the plebiscite has been set by law numerous times. The

“hardship” endured by plaintiff has been tangible, cumulative and increasing with each successive

designation of the plebiscite’s date over the last fourteen years. The “hardship to the parties of

withholding court consideration” weighs in favor of finding plaintiff has a ripe claim.

Finally, whether 1 GCA § 2109 changes the plebiscite triggers is a pure question of law for this

Court. If Section 2109 provides an immediate, discretionary and ministerial trigger to set the

plebiscite, finding the plaintiff’s claim to be unripe invites a disruptive laches problem of the sort

in Perry v. Judd, __ F. Supp. 2d __, 2012 WL 113865, *2 (E.D. Va. 2012) (constitutional claims

unable to be adjudicated so close to an election). The statute weighs in favor of the plaintiff under

the second prong of Texas.

III. Davis is further distinguished because the CNMI plaintiff did not bring claims under

the Organic Act of 1950 and Section 2 of the Voting Rights Act.

Davis is also distinguishable because the plaintiff there did not bring certain statutory claims

which are brought here. Most notably, no claim was brought under Section 2 of the Voting Rights

Act in the CNMI. The Organic Act of 1950 was obviously not invoked either. As briefed at

length by plaintiff, Congress may create statutory rights, the invasion of which creates a ripe case

or controversy. See, Havens Realty, 455 U.S. at 373.


6

Organic Act of 1950.

The Organic Act of 1950 was not part of the CNMI case and Davis can be distinguished on that

basis alone. The Organic Act squarely addresses qualifications to participate in the political

process. Without exception, the Organic Act prohibits all registration qualifications other than

residency, citizenship, and civil capacity. 48 U.S.C. § 1421b(m). The native inhabitant

qualification cannot be credibly characterized as falling within one of these three permissible

qualifiers. Indeed, section 1421b(m) answers the key issue presented by the Magistrate’s Report

in this case: when do the discriminatory provisions of 1 GCA § 2102 and § 2110 injure the

plaintiff? Section 1421b(m) creates a statutory injury at the moment of denial of right to register

to participate in the political process, not (as defendants argue) only when an election is imminent.

Furthermore, violation of the broad statutory restrictions against discrimination in 48 U.S.C. §

1421b(n) also creates a ripe statutory injury. That section states that “no discrimination shall be

made in Guam against any person on account of race.” It does not mention an election. A claim

under § 1421b(n) is ripe the moment discrimination occurs on Guam, as it did when 1 GCA § 2102

and § 2110 were enacted, and when plaintiff’s registration was denied on March 4, 2009.

Section 2 of the Voting Rights Act.

Plaintiff here (unlike in Davis) alleges a violation of Section 2 of the Voting Rights Act.

Section 2 was designed to eradicate the very sort of creative, legalistic, and racially discriminatory

registration denial that is occurring on Guam. It specifically targets registration qualifications

and prerequisites.

Section 2(a) of the Voting Rights Act prohibits any state or political subdivision from


7

imposing or applying “any qualification or prerequisite” to voting or “any standard, practice, or

procedure” which “results in a denial or abridgement of the right of any citizen of the United States

to vote on account or race or color.” 42 U.S.C. § 1973(a) (emphasis added).

Defendants do not dispute that Section 2 creates rights, and that the violation of those rights

creates an Article III injury. Rather, they suggest, for the first time, that Section 2 is inapplicable

here. For example, they misinterpret 42 U.S.C. § 1973(l)(c)(1), suggesting that it limits the reach

of Section 2, instead of expanding it. Resp. 7-8. Section 1973(a) (Section 2 of the Voting Rights

Act) is a stand-alone provision; it does not extend only to the examples contained in Section

1973(l)(c)(1). See e.g., United States v. Brown, 494 F. Supp. 2d 440, 454 (S.D.Miss.2007)

(Section 2 violation when candidate Walker treated unfairly in defendant’s home during

intra-party dispute about challenge to placement of opposing candidate on ballot.).

Even if defendants were correct that Section 1971(l)(c)(1) is an exhaustive list of those

matters that can violate Section 2, the appearance of the word “proposition” adequately describes

the plebiscite in the common usage of the term as it applies to elections where an issue or question

is submitted broadly to the electorate. E.g., Tigrett v. Cooper, 2012 WL 691892, *20-21 (W.D.

Tenn. March 2, 2012); Armstrong v. Allain, 893 F. Supp. 1320, 1323 (S.D. Miss. 1994)

Defendants also quip that Guam “could not have been further from Congress’ mind” when

it enacted Section 2 in 1965. Resp.11. Courts have squarely rejected such racially selective

application of Section 2 of the Voting Rights Act just because the victims of discrimination are not

traditional racial minorities. Brown, 494 F. Supp. 2d at 444. (“Section 2 provides no less

protection to white voters than any other class of voters. Any doubt as to this conclusion is

allayed by a review of the history of Section 2.”). One matter perhaps further from the mind of


8

Congress in 1965 than Guam was the plight of white Mississippians. Nevertheless, Section 2

protects everyone equally, even if defendants prefer that a diluted version be applied in Guam.

Defendants correctly note that plaintiff does not cite any authority for the proposition that Section

2 prohibits a government sponsored and government-run registration system to poll only one race

of voters in an election. Resp. 7, n.5. Plaintiff cites no authority for this proposition because no

state has been so brazen since 1965 as to enact such a nakedly discriminatory law. After the

Voting Rights Act passed 1965, and after the bloodshed that characterized the fight over the right

merely to register, states forever abandoned any laws even resembling such an illegal registration

scheme.

Finally, and more broadly, Defendants repeatedly imply that this Court should dilute civil

rights protections because Guam is a mere territory and groups would be slighted if plaintiff

prevails. Defendants advance a “fundamental difference between citizenship unilaterally

conferred upon residents of unincorporated territories and citizenship obtained by mutual

consent.” Resp.12.

But defendants cite no authority that the statutes at issue in this case, including the Voting

Rights Act and 42 U.S.C. § 1971, and the Fifteenth Amendment do not apply with equal strength

in Guam as they do in Ohio or Georgia. The defendants might prefer that these statutes be diluted

when they are applied in Guam, but doing so would be error. Neither may grievances about the

decisions made by Congress in 1950 masquerade as an affirmative defense to modern race

discrimination.

Defendants improperly characterize plaintiff as seeking to “permanently muzzle” fellow

citizens. Resp.14. To the contrary, plaintiff seeks to give all citizens a voice.


9

Finally, defendants devote considerable and unwarranted attention to a newspaper column

they claim was published by plaintiff. Resp. 2-3. The article is unauthenticated hearsay and, in

any event, has no relevance to a motion challenging the allegations of the complaint, much less to

objections made to a Magistrate’s Report on such a motion, based upon a record that had no such

outside sources. Even were plaintiff to take to the pages of the Marianas Variety and announce

the case isn’t ripe, the parties and this Court know that whether the case is ripe or not depends on

objective factors, not an opinion column by plaintiff. Finally, the statement was obvious

hyperbole and has no place in deciding the motion to dismiss.

For these reasons,

Plaintiff respectfully requests this Court to DENY defendants’ motion to dismiss.

Respectfully submitted,

____________J. Christian Adams/s/________

J. Christian Adams

Counsel for Plaintiff

Date: August 22, 2012

MUN SU PARK

LAW OFFICES OF PARK AND ASSOCIATES

Suite 102, Isla Plaza

388 South Marine Corps Drive

Tamuning, GU 96913

Tel: (671) 647-1200

Fax: (671) 647-1211

[email protected]

J. CHRISTIAN ADAMS

ELECTION LAW CENTER, PLLC

300 N. Washington St., Suite 405

Alexandria, VA 22314

Tel: (703) 963-8611

Fax: 703-740-1773

[email protected]

MICHAEL E. ROSMAN


10

CENTER FOR INDIVIDUAL RIGHTS

1233 20th

St. NW, Suite 300

Washington, DC 20036

Tel: (202) 833-8400

Fax: (202) 833-8410

[email protected]


11

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the forgoing Plaintiff’s Reply to Defendants’

Response to Objections to Magistrate’s Report on counsel for the Defendants by providing a

copy to Robert M. Weinberg, Assistant Attorney General through the Electronic Case Filing

System on August 22, 2012, which provides an electronic copy of the same to

[email protected].

_____________J. Christian Adams/s/___________

J. Christian Adams

Counsel for Plaintiff


pl response to reply to defendants on magistrates objections

Documents

establishment clause cases

voting rights act

article iii injury

christian adams counsel

political status plebiscite

part ripeness test

guam election commission

organic act