Pl Response to Reply to Defendants on Magistrates Objections
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Transcript of 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
J. CHRISTIAN ADAMS
ELECTION LAW CENTER, PLLC
300 N. Washington St., Suite 405
Alexandria, VA 22314
Tel: (703) 963-8611
Fax: (703) 740-1773
MICHAEL E. ROSMAN
CENTER FOR INDIVIDUAL RIGHTS
1233 20th
St. NW, Suite 300
Washington, DC 20036
Tel: (202) 833-8400
Fax: (202) 833-8410
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 Page 1 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.
Case 1:11-cv-00035 Document 56 Filed 08/22/12 Page 2 of 12
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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.
Case 1:11-cv-00035 Document 56 Filed 08/22/12 Page 3 of 12
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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.”
Case 1:11-cv-00035 Document 56 Filed 08/22/12 Page 4 of 12
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“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
Case 1:11-cv-00035 Document 56 Filed 08/22/12 Page 5 of 12
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(“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.
Case 1:11-cv-00035 Document 56 Filed 08/22/12 Page 6 of 12
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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
Case 1:11-cv-00035 Document 56 Filed 08/22/12 Page 7 of 12
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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
Case 1:11-cv-00035 Document 56 Filed 08/22/12 Page 8 of 12
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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.
Case 1:11-cv-00035 Document 56 Filed 08/22/12 Page 9 of 12
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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
J. CHRISTIAN ADAMS
ELECTION LAW CENTER, PLLC
300 N. Washington St., Suite 405
Alexandria, VA 22314
Tel: (703) 963-8611
Fax: 703-740-1773
MICHAEL E. ROSMAN
Case 1:11-cv-00035 Document 56 Filed 08/22/12 Page 10 of 12
10
CENTER FOR INDIVIDUAL RIGHTS
1233 20th
St. NW, Suite 300
Washington, DC 20036
Tel: (202) 833-8400
Fax: (202) 833-8410
Case 1:11-cv-00035 Document 56 Filed 08/22/12 Page 11 of 12
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
_____________J. Christian Adams/s/___________
J. Christian Adams
Counsel for Plaintiff
Case 1:11-cv-00035 Document 56 Filed 08/22/12 Page 12 of 12