Lead Opinion
Olagues, a citizen, and certain organizations promoting the voting rights of Americans with Hispanic or Chinese ethnic backgrounds in the San Francisco Bay area (the organizations) sued for damages and declaratory and injunctive relief arising from a preliminary investigation by the United States Attorney and various state officials into possible violations of the Voting Rights Act of 1965, 42 U.S.C. § 1973i(c), (d) (the Act), which prohibits the illegal registration of voters or conspiracies to illegally register voters. Olagues and the organiza
I
In March and April of 1982, United States Attorney Russoniello received information from the Santa Clara County district attorney indicating that a substantial number of foreign-born individuals who had recently registered to vote were not United States citizens. The information was contained in a study of recent voter registrants whose primary language was not English. Many of the noncitizen registrants apparently believed or were told that they were entitled to vote on the basis of marriages to United States citizens or a long period of residence in the United States. Russoniello also was informed that the Spanish translation of the voter registration form erroneously stated that registrants “should be” a United States citizen, rather than stating one “must be” a citizen.
Russoniello then sent a letter on April 19, 1982, to law enforcement officers and voter registrars in nine local counties within his jurisdiction requesting their cooperation in obtaining a sampling of names from voter registration lists in order to determine whether the improper registration problem noticed in Santa Clara County was more widespread. The letter requested the forwarding of 25 names, randomly selected, of recently registered, foreign-born voters who requested bilingual ballots. The letter indicated that upon receipt of the sampling, the names would be forwarded to the Immigration and Naturalization Service (INS) to determine each individual’s citizenship status. He recommended that those individuals who the INS indicated were not citizens be interviewed thereafter. Russoniello stated that he did not intend to prosecute any improperly registered voters, but that he would consider prosecuting individuals who deliberately conspired to register unqualified voters if evidence of such impropriety surfaced.
The local officials responded by forwarding the names of 168 persons, one of whom was Olagues, from the public voting lists which were subsequently checked by the INS. At Russoniello’s request, local officials then conducted voluntary interviews with some of the 113 individuals whom the INS could not positively identify as citizens to determine their citizenship and, if the individuals proved not to be United States citizens, the circumstances surrounding their registration. No further investigation occurred.
II
Because the investigation has terminated, we first must determine whether there remains a live controversy for purposes of granting equitable relief. There is no question that a controversy remains with respect to damages.
We begin this analysis with the recognition that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy” for equitable relief. O’Shea v. Littleton,
There is a heavy burden, however, on the defendant to show that there is no reasonable expectation of repetition. United States v. W.T. Grant Co.,
Applying this framework to the case before us, we find several factors pointing toward the continuing existence of a case or controversy for purposes of evaluating plaintiffs’ equitable claims. First, the United States Attorney did not voluntarily cease the challenged activity because he felt that the investigation was improper. Rather, Russoniello terminated the investigation solely because it failed to produce evidence supporting any further investigative activities. Russoniello has at all times continued to argue vigorously that his actions were lawful.
Second, there has been no showing that an investigation conducted in the same manner against the same groups would not recur. Although Russoniello and the state officials point out that the Director of the Census now has determined that these counties no longer must provide bilingual ballot materials, see 49 Fed.Reg. 25,887-88 (June 25, 1984), Olagues and the organizations correctly observe that election officials in San Francisco, Santa Clara, Alameda and Monterey counties will continue to provide the same bilingual ballot materials as previously required by section 203(b) of the Voting Rights Act, 42 U.S.C. § 1973aa-la(b). Thus, Russoniello will continue to have the means available to conduct an investigation similar to the one challenged here. It is immaterial that the tools useful for discriminatory purposes are furnished by the state rather than by the federal government; what matters is whether federal officials may utilize them.
Russoniello is certainly empowered to investigate election fraud; it would not be unreasonable to believe that a similar investigation might arise at some point in the future. Thus, the same issues are capable of repetition. At the same time, these investigations, such as the one in the present case, may be of very short duration, making them effectively capable of evading review by an appellate court. E.g., Nebraska Press Association v. Stuart,
Other factors also suggest a live controversy. The organizations argue that their organizational efforts have been handicapped as a result of the fear engendered by this investigation. They contend that unless the legality of the investigation is determined, they may continue to suffer these chilling effects despite the termination of the initial investigation. Furthermore, there is a significant public interest in addressing both the appropriateness of permitting a challenge to a federal investigation, which raises separation-of-powers concerns, and the appropriateness of the investigatory methods employed, which raises voting rights and first amendment concerns.
This case is distinguishable from O’Shea and City of Los Angeles v. Lyons,
Here, Olagues and the organizations claim that the actions of the officials have interfered with their constitutionally protected first amendment activities in registering voters. Unlike O’Shea and Lyons, neither Olagues nor the organizations had to break any law in order to be subjected to alleged unlawful conduct by the officials. Certainly the legality of the investigation at issue remains in dispute; both sides continue forcefully to advocate their positions. Russoniello has never seriously attempted to make any showing that the challenged investigative techniques will never be employed again; rather, he vigorously defends his investigative tactics. Thus, he fails to meet his “heavy burden” of showing mootness. W.T. Grant,
Ill
We next examine the standing of Olagues, a foreign-born citizen who requested bilingual election materials, and the organizations, which claim that the challenged investigatory activities will “effectively deny their right to participate in the electoral process.”
We recently summarized the law relating to standing required by article III of the Constitution:
Standing is a threshold question in every case before a federal court. Before the judicial process may be invoked, a plaintiff must “show that the facts alleged present the court with a ‘case or controversy’ in the constitutional sense and that [he] is a proper plaintiff to raise the issues sought to be litigated.” A party seeking to invoke the court’s authority must demonstrate “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of the issues upon which the court so largely depends____”
The question of whether the plaintiff has standing involves both constitutional and prudential limitations. The constitutional limitations of article III involve three separate but interrelated components: first, a “distinct and palpable” injury to the plaintiff, be it “threatened or actual”; second, a “fairly traceable causal connection” between that injury and the challenged conduct of the defendant; and third, a “substantial likelihood” that the relief requested will redress or prevent the injury.
McMichael v. County of Napa,
Olagues would generally have standing under the Act if he is an “aggrieved person,” broadly defined as one who has suffered an injury. See Allen v. State Board of Elections,
Here, Olagues is not seeking any affirmative injunctive relief in order to permit him to vote, such as demanding that he be listed as an eligible voter. Rather, he seeks to enjoin prosecutorial activities which are focused on persons other than himself. Moreover, it does not appear that Olagues has demonstrated that he would suffer irreparable harm without equitable relief. Unlike the organizations, who allege that their current voter registration efforts are being hindered by the fear that they may possibly be subject to a similar investigation in the future, the possibility that Olagues’s voter registration records will be scrutinized again is entirely speculative. Olagues thus faces the barrier of Lyons, which emphasizes that the irreparable harm showing is “a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again.”
Under these circumstances, we conclude that Olagues has failed to overcome the prudential limitations on standing that are particularly important when evaluating claims for equitable relief regarding a criminal investigation. The injuries he alleges are insufficient to warrant such an intrusive remedy. Since he is a citizen, it cannot be seriously contended that Olagues has been or will be denied his right to vote as a result of an examination of public records. No official action has been taken against him, other than verifying his citizenship status along with those individuals who were initially identified as improperly registered. The principal claim of present injury is that the investigation has had a “chilling effect” on and “stigmatized” him. However, mere “allegations of a subjective ‘chill’ ” do not suffice to present a justiciable claim. Laird v. Tatum,
The organizations’ standing requires more extensive analysis. Chinese for Affirmative Action is a voluntary membership group that seeks to protect the rights of Chinese-Americans. It monitors compliance with bilingual election requirements and encourages Asian-Americans to register and to vote. The Hispanic Coalition for Human Rights is an association of Hispanic organizations and persons of Mexican descent, with a goal of securing the civil rights of Hispanics. It encourages them to register and to vote, and advises them on the availability of bilingual election materials. The San Francisco Latino Voter Registration Education Project is a coalition of Hispanic groups that was conducting a voter education and registration drive at the time of the investigation. The organizations allege that the investigation has hindered their efforts to encourage citizens of Hispanic and Chinese ethnic backgrounds to participate in the electoral process and that it was aimed at investigating how they registered voters, thus intimidating them in such activities. They also fear disclosure of their organizational membership. They claim direct injury both to themselves and to their members.
An associational plaintiff has standing to seek redress of direct injury to the organization itself. See Simon v. Eastern Kentucky Welfare Rights Organization,
The organizations claim standing on two grounds. First, they assert a direct injury: their voter registration and educational efforts have been hindered as the direct result of the challenged investigation, in violation of their first amendment and associational rights. They claim that the investigation has discouraged members from participating in their associational activities and that it will lead to disclosure of organizational membership, thus undermining their voter education and registration efforts. Because the investigation involved questioning of voter registrants as to who had assisted them in registering, they contend, it inherently delved into their associational activities and membership in violation of their constitutional rights.
Second, the organizations assert that both they and their members are threatened with possible prosecution for violations of the Voting Rights Act. They cite Russoniello’s letter as evidence that such prosecution was possible. They further assert that they are undoubtedly the targets of Russoniello’s investigation and may be charged with improperly influencing ineligible persons to register.
A preliminary issue is whether the investigation may be fairly characterized as having been “targeted” at these organizations or their members. The investigation sought to determine whether there existed any unlawful conspiracies to register ineligible foreign-born voters. The random sample of voters employed focused solely on foreign-born registrants who sought bilingual ballots. Russoniello’s letter indicates that groups targeting citizens of Chinese and Hispanic ethnic backgrounds were the source of his concern. Although he stated that he did not challenge their right to conduct registration drives, he did not disavow future prosecutions against persons conspiring to register noncitizens. When any voter whose name was chosen at random initially appeared to be unqualified, he sought follow-up questioning to determine who registered the voter and what representations had been made as to the qualifications necessary to vote. It is not difficult to conclude from this fact that the investigation was sufficiently “targeted” at the organizations and their members for purposes of our analysis. Their principal activities were directed specifically at registering and counseling voters who would fall within the classification on which the investigation was based. That they were not specifically named as targets does not change this conclusion.
We now analyze these organizations’ standing under Hunt’s three-part test. The first hurdle is whether the groups or their members may have suffered any direct, cognizable injury. We conclude that the organizations’ allegations raise sufficient claims of potential direct injury to both themselves and their members. The Supreme Court has recognized previously that a group may have standing even if it is only derivatively injured as the result of
The next inquiry is whether the interests the organizations seek to protect are “germane” to the purposes of the organizations. Hunt,
Finally, the relief sought by the organizations does not require the participation of individual members in the suit. The principal claims are for injunctive and declaratory relief; such equitable relief is particularly suited for group representation. See Warth,
IV
Although a case may not be moot, a plaintiff still has the burden of showing that equitable relief is necessary, see W.T. Grant,
The organizations seek to enjoin a preliminary investigation of a United States Attorney. The district court dismissed the organizations’ complaint on the grounds that “as a matter of law,” it lacked “jurisdiction to enjoin or otherwise control” such an investigation. We review the legal question of jurisdiction de novo. E. g., United States v. Oregon,
We have recognized, however, that as a general proposition, a district court has no “power to monitor executive investigations before a case or controversy arises.” Jett,
The organizations alleged that the United States Attorney lacked a reasonable basis for initiating the investigations. The district court should therefore have determined whether any extraordinary circumstances were present. Because we may affirm the district court’s ruling on any basis fairly presented by the record, however, see Keniston v. Roberts,
Other courts have been equally reluctant to intrude into the sphere of prosecutorial authority. See Reporters Committee for Freedom of the Press v. American Telephone & Telegraph,
Only one court has actually found the presence of sufficiently extraordinary circumstances. In Pollard v. Roberts,
Courts have rejected attempts to interfere with an investigation by a United States Attorney in two similar instances. In LaRouche, contributors and organizations supporting a Congressman sued for injunctive and declaratory relief in regard to an investigation into his campaign. The investigation was triggered by a series of newspaper stories indicating potentially illegal campaign financing activities. Plaintiffs argued that the investigation was in bad faith with the intention of both chilling the plaintiffs’ exercise of their first amendment rights of association and discouraging future contributions. The United States Attorney’s activities had been limited to questioning various contributors. After noting the “almost insurmountable burden” plaintiffs faced, the district court emphasized that: “The decision to investigate, like the decision to prosecute, is one which the Constitution places in the executive branch. The constitutional separation of powers prevents the courts from interfering with the exercise of prosecutorial discretion except under the rarest of circumstances.”
Reporters Committee involved two newspapers which sought injunctive and declaratory relief from a telephone company policy of providing toll call records to law enforcement officials, claiming first and fourth amendment violations. The court held that the first amendment provided no additional “shield” respecting privacy interests beyond the fourth amendment’s protection in the context of a good faith criminal investigation.
Y
Plaintiffs urge that the preliminary investigation in this case should be reviewed by this court with “heightened scrutiny” because it focused on a “suspect class” and because a fundamental right is burdened. We disagree.
Initially, the organizations argue that a classification based on an individual's choice of language is a form of discrimination based on race or national origin. No court has yet held that a language-based classification is the equivalent of one based on race or national origin requiring heightened scrutiny as a “suspect class.” Indeed, those courts which have faced this issue have held that language-based classifications are not the equivalent of national origin classifications. See Soberal-Pereztv. Heckler,
Unlike race, place of birth, or sex, language is not one of those “immutable characteristics] determined solely by the accident of birth” which typically are the basis for finding a suspect class. Frontiero v. Richardson,
Heightened scrutiny is also appropriate if a fundamental right is burdened, and voting is considered a fundamental right. E.g., Dunn v. Blumstein,
The organizations’ first amendment claims are equally lacking in substance. Whatever incidental burden (if any) on their associational rights which may have occurred must give way to the government’s need to ensure the sanctity of the polls. See, e.g., LaRouche,
When no “suspect class” is involved and no fundamental right is burdened, a rational basis test is used to determine the legitimacy of the classification. See Massachusetts Board of Retirement v. Murgia,
We realize that the separation of powers doctrine does not require us to ignore any and all activities by executive officials regardless of whether their actions constitute clear violations of individual rights. At the same time, however, even the organizations recognize that a United States Attorney is entitled, indeed required, to conduct an investigation into allegations of voting fraud. They only quarrel with the scope and man
We only hold that on the facts of this case, no such extraordinary circumstances exist warranting intrusion into the actions of the executive branch. This is not to say that the organizations’ charges are not serious; we reach this conclusion only after careful scrutiny of the record before us. We are compelled, however, to refrain from injecting ourselves into the midst of what essentially was only an embryo of an investigation. A narrowly focused preliminary inquiry using public records was undertaken in order for the United States Attorney to determine whether a problem even existed. Without the ability to make such a narrow inquiry, in the face of a study indicating potentially significant voter registration problems, the United States Attorney would be deprived of the information he needs to perform his duties. The organizations would have us either forbid any preliminary investigation, or mandate one of significantly broader scope. But matters such as the scope of a preliminary investigation are delegated to the sound discretion of the executive branch.
VI
The organizations also sought declaratory relief. The district court dismissed this claim without elaborating its reasons. The decision whether to grant declaratory relief is within the sound discretion of the district court. See, e.g., Doe v. Gallinot,
Declaratory relief may be appropriate even when injunctive relief is not. See Steffel v. Thompson,
Thus, the Supreme Court has recognized that “ordinarily a declaratory judgment will result in precisely the same interference with and disruption of” law enforcement activities as an injunction, Samuels,
The central purpose of the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, is to provide parties with a declaration of their rights prior to incurring actual injury. In the typical case requesting declaratory relief with respect to law enforcement officials, a declaration of rights is sought with respect to a party’s ongoing or intended conduct in light of existing criminal statutes. The party desires a declaration that
In these circumstances, we hold that the district court’s denial of declaratory relief was not an abuse of discretion. The organizations were not generally hindered from pursuing their lawful voter registration activities at the risk of imminent criminal prosecution, unlike the restaurant owners in Doran. Declaratory relief in this action would raise the same concerns regarding interference with the activities of prosecuting officials that we pointed out in our discussion of injunctive relief.
VII
The separation of powers concerns with regard to equitable relief against a United States Attorney are absent when examining the appropriateness of equitable relief against the county officials. But similar considerations of restraint in ordering such relief arise out of principles of comity and federalism, as emphasized in Lyons, O’Shea, and Younger. “[Recognition of the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the States’ criminal laws----” Lyons,
Even absent these concerns, the organizations’ claims under the Voting Rights Act against these officials do not appear to have merit. Assuming that the search of voting records intimidated bilingual voters, such intimidation would satisfy only one part of a two-pronged test for violations of 42 U.S.C. §§ 1971(b) and 1973i(b): the voters and organizations were intimidated, but the officials did not intend to intimidate. See United States v. McLeod,
VIII
The organizations’ First Amended Complaint seeks “statutory damages” under the Voting Rights Act. Pursuant to Allen v. State Board of Elections, 393 U.S.
The Act, however, does not specify any statutory damage remedies. No case has been cited nor have we found one in which damages were recovered. In determining whether to construe an implied cause of action, the principal focus must be on congressional intent. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,
Moreover, Supreme Court precedent suggests that private plaintiffs are limited to damage actions under 42 U.S.C. § 1983. See Smith v. Allwright,
IX
There is also an issue of whether the organizations’ complaint can be read fairly to include a request for damages based on constitutional claims or statutory claims such as section 1983, 42 U.S.C. § 1983. We agree with the district court, however, that the officials involved in this action would be entitled to immunity from such damage claims.
Under Imbler v. Pachtman,
We have previously employed Imbler’s functional approach for determining the degree of immunity for prosecutorial activity. See Ybarra v. Reno Thunderbird Mobile Home Village,
The district court held that the actions in question were investigatory rather than prosecutorial in nature. The limited investigative activities undertaken by Russoniello, however, may be encompassed within those activities essential to the initiation of a prosecution. His decision to request a sampling of voting records can hardly be
We recognize that the decision of the Attorney General, or a prosecuting attorney, to initiate a prosecution is not made in a vacuum. On occasion, the securing of additional information may be necessary before an informed decision can be made. To grant a prosecuting attorney absolute immunity over his decision to initiate a prosecution while subjecting him to liability for securing the information necessary to make that decision would only foster uninformed decision-making and the potential for needless actions. We believe the right to make the decision without being subject to suit must include some limited right to gather necessary information.
Forsyth v. Kleindienst,
We need not determine whether the district court erred in denying absolute immunity, because we agree that all those sued are entitled at least to qualified, good faith immunity. The controlling standard is “the objective reasonableness of an official’s conduct, as measured by reference to clearly established law.” Harlow v. Fitzgerald,
Under this objective standard, all the officials are entitled to immunity. The county officials did no more than submit information in the public record to the United States Attorney at his request, with some later, voluntary interviews of those voters whose citizenship the INS was unable to ascertain. Such actions do not violate any “clearly established” rights. Examining information in the public record violates no one’s rights. The Northern District Director of the INS, David Ilchert, similarly did no more than provide information to Russoniello that was available to anyone on request.
Russoniello’s actions were limited to conducting a preliminary investigation of potential voting fraud by examining and cross-checking public records. The limited scope of the investigation was reasonably related to his need to secure a preliminary indication of the scope of potential illegalities. No further activities were undertaken or contemplated. These actions also violated no individual’s “clearly established” rights; indeed, it was Russoniello’s duty to perform this investigation under the Voting Rights Act.
The organizations’ claims rest entirely on their contention that an investigation using a language-based classification to define its scope is subject to strict scrutiny as invidious discrimination on the basis of national origin. This contention is further dependent upon a finding that the illegality of using such a classification was “clearly established.” See Capoeman v. Reed,
AFFIRMED.
Concurrence in Part
concurring and dissenting;
I agree that the controversy is not moot (section II), that the organizations have standing (section III), and that the defendants are entitled to good faith immunity from damages under 42 U.S.C. § 1983 (section IX). I dissent from the holdings that Olagues lacks standing (part of section III), that “extraordinary circumstances” are required to enjoin an investigation that infringes upon First Amendment rights (section IV), that heightened scrutiny is not warranted for the equal protection claim (section V), that declaratory and injunctive relief should be judged under the same
Standing should not be denied to Olagues. Neither rationale employed by the majority is convincing. The prudential analysis speaks of “equitable relief” but then considers solely the request for an injunction, ignoring the declaratory relief sought. The majority concedes that Olagues has alleged an injury, but then categorizes the harm as “subjective” and therefore nonjusticiable under Laird v. Tatum,
Olagues satisfies the requisites of standing under the very case upon which the majority relies. See McMichael v. County of Napa,
The majority accords standing to the organizations because the investigation threatened their members. The identical threat is posed to the group of voters to which Olagues belongs — Hispanic citizens who request bilingual ballots. This language minority group is explicitly protected against voting discrimination. See 42 U.S.C. § 1973b(f)(2). The injury to Olagues as a member of this group is another ground for his standing under the Equal Protection Clause. See United Jewish Organizations of Williamsburgh, Inc. v. Wilson,
The majority-misstates the standard for injunctive relief in this context. Instead- of the' “extraordiñafjnñ^ threshol drnlráwñ~fróm _federaIisnL_and__criminal cases-
The organizations alleged that the United States Attorney lacked a reasonable basis for initiating the investigations. The district court should have made a finding on this issue. See La Rouche v. Webster,
Contrary to the majority’s view, declaratory relief raises different concerns than an injunction. To quote one case cited by the majority, “critical distinctions make declaratory relief appropriate where injunctive relief would not be.” Steffel v. Thompson,
This case warrants the award of a declaratory judgment under the Constitution. The investigation fails before the scrutiny required for a classification which burdens the voting rights of a suspect class.
The majority recognizes that the investigation targeted “recently registered, foreign-born voters who requested bilingual ballots,” at -, but then analyzes the class as if it were defined solely by language ability. The classification was of those who requested bilingual ballots, not just of individuals who speak more than one language, and it included two other factors — foreign birth and recent registration to vote. The class should be analyzed as defined by these three characteristics.
Foreign birth is “an immutable characteristic determined solely by an accident of birth,” Frontiero v. Richardson,
The fundamental right to vote was burdened by this investigation. The majority finds otherwise, perhaps because it equates “burden” with outright denial of the right
The opinion states that “it is difficult to see how any ‘burden’ was placed,” but I do not share this difficulty. An investigation by the FBI and INS and a summons to the district attorney to prove one’s citizenship, as I noted above concerning the injury to Olagues, constitutes a burden on the exercise of the right to vote in this case. The impact of the investigation on the class went beyond any ordinary inconvenience caused to witnesses. These individuals are not fluent in English, are new to this country, and through their recent acquisition of citizenship have experienced the INS bureaucracy, which misrepresented the citizenship status of more than half of those investigated. When a citizen’s request for a bilingual ballot — which is specifically made available by Congress to eliminate voting discrimination against those more comfortable in another language, Chinese for Affirmative Action v. Lequennec,
Having examined the character of the classification in question and the importance of the individual interests at stake, Illinois State Board of Elections v. Socialist Workers Party,
examine the interests asserted in support of the classification. Id. The classification must be necessary to serve a compelling interest, and it must employ the least drastic means to achieve that end. Id. at 184-85,
Relief may also be required under the Voting Rights Act. I would remand the issue of potential violation of 42 U.S.C. § 1973aa-la. See Lequennec,
Finally, even absent its legal infirmities, this investigation violated the spirit behind the Voting Rights Act, which charges the Attorney General with eradicating discrimination against language minority voters and discrimination based upon national origin. Instead, this U.S. Attorney’s efforts engendered such discrimination. I cannot join the majority’s wholesale affirmance of the district court’s judgment.
Notes
. See Rizzo v. Goode,