ARNOLD DAVIS, on behalf of himself and all others similarly situated, Plaintiff-Appellant,
GUAM; GUAM ELECTION COMMISSION; ALICE M. TAIJERON; MARTHA C. RUTH; JOSEPH F. MESA; JOHNNY P. TAITANO; JOSHUA F. RENORIO; DONALD I. WEAKLEY; LEONARDO M. RAPADAS, Defendants-Appellees
Argued and Submitted, Hagatna, Guam August 27, 2014
Appeal from the United States District Court for the District of Guam. D.C. No. 1:11-cv-00035. Frances Tydingco-Gatewood, Chief District Judge, Presiding.
The panel affirmed in part and reversed in part the district court's dismissal, on standing and ripeness grounds, of an action brought by a resident of Guam who is not eligible to vote in a plebiscite concerning Guam's future political relationship with the United States because he is not a Native Inhabitant.
Plaintiff alleged that Guam's Native Inhabitant classification is an unlawful proxy for race. Plaintiff sought a declaration that limiting registration to Native Inhabitants is unlawful, and an injunction against using any registry other than Guam's general voter registry in determining who is eligible to register for, and vote in, the plebiscite.
The panel held that plaintiff's challenge to Guam's registration restriction asserted a judicially cognizable injury that would be prevented or redressed if the district court were to grant his requested relief. Plaintiff therefore had Article III standing to pursue his challenge to Guam's alleged race-based registration classification. The panel further held that the claim was ripe because plaintiff alleged he was currently subjected to unlawful unequal treatment in the ongoing registration process. The panel held that because plaintiff did not argue on appeal that the district court erred by dismissing his claim against Leonardo Rapadas, the Attorney General of Guam, any claim of error was waived.
Dissenting, Judge N.R. Smith stated that given the speculative and remote course of events that stood between plaintiff and his contemplated injury, the matter was not ripe for adjudication, and the district court correctly dismissed plaintiff's complaint.
Douglas R. Cox, Scott P. Martin (argued) and Marisa C. Maleck, Gibson, Dunn & Crutcher LLP, Washington, D.C., Michael E. Rosman, Center for Individual Rights, Washington, D.C., Mun Su Park, Law Offices of Park and Associates, Tamuning, Guam and J. Christian Adams, Election Law Center, PLLC, Alexandria, Virginia for Plaintiff-Appellant.
Leonardo M. Rapadas, Attorney General, and Robert M. Weinberg, Assistant Attorney General (argued), Office of the Attorney General of Guam, Tamuning, Guam for Defendants-Appellees.
Meriem L. Hubbard, Joshua P. Thompson and Jonathan Wood, Pacific Legal Foundation, Sacramento, California for Amicus Curiae Pacific Legal Foundation.
Julian Aguon, Law Office of Julian Aguon, Hagatna, Guam for Amicus Curiae Anne Perez Hattori.
Before: Mary M. Schroeder, Alex Kozinski, and N. Randy Smith, Circuit Judges. Opinion by Judge Kozinski. Dissent by Judge N.R. Smith.
KOZINSKI, Circuit Judge:
Pursuant to a law passed by the Guam legislature, eligible " Native Inhabitants of Guam" may register to vote in a plebiscite concerning Guam's future political relationship with the United States. Guam will conduct the plebiscite if and when 70 percent of eligible Native Inhabitants register. Plaintiff Arnold Davis is a Guam resident who isn't eligible to register because he is not a Native Inhabitant. He alleges that Guam's Native Inhabitant classification is an unlawful proxy for race. At this stage, we must determine only whether Davis has standing to challenge the classification and whether his claims are ripe.
Guam law directs the territory's Commission on Decolonization to " ascertain the intent of the Native Inhabitants of Guam as to their future political relationship with the United States of America." 1 Guam Code Ann. § 2105. The same law also provides for a " Political Status Plebiscite." Id. § 2110. The plebiscite would ask eligible Native Inhabitants to choose among three options: (1) " Independence," (2) " Free Association with the United States of America" or (3) " Statehood." Id. It would be conducted by Guam's Election Commission on the same day as a general election. Id. The Commission on Decolonization would then be required to transmit the plebiscite's results to the President, Congress and the United Nations as reflecting ...