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RICHARD L HOLCOMB (HI Bar No. 9177)
BRIAN BRAZIER (HI Bar No. 9177) (Of Counsel)Holcomb Law, A Limited Liability Law Corporation1136 Union Mall, Suite 808Honolulu, HI 96813Telephone: (808) 545-4040Facsimile: (808) 356-1954Email:[email protected] Counsel; Brian BrazierALAN BECK (HI Bar No. 9145)Attorney at Law4780 Governor DriveSan Diego, California 92122Telephone: (619) 971-0414Email: [email protected] for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Hawaii Defense Foundation,Christopher Baker,and Derek Scammon
Plaintiffs,vs.
City and County of Honolulu;Andrew Lum, in his personal andofficial capacity;John Does 1-10 in their personal and
official capacities.
Defendants._________________________
)))))))))))
)))))
CASE NO. CV 12-00469JMS-RLP
PLAINTIFFS RESPONSE TO DEFENDAMOTION FOR JUDGMENT ON THEPLEADINGS [DOC. 36]; EXHIBIT ONE;DECLARATION OF CHRISTOPHER BACERTIFICATE OF SERVICE
HEARING:
Date: January 21, 2013Time: 9:00 a.m.Judge: Honorable J. Michael Seabright
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TABLE OF CONTENTS
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
Armster v. U.S. Dist. Court, 806 F.2d 1347 (9th Cir. 1986) . . . 13
Barnes v. Healy, 980 F.2d 572 (9th Cir. 1992) . . . . . . . . . . . . . 7, 15-16, 17
Canez v. Guerrero,707 F.2d 443 (9th Cir.1983) . . . . . . . . . . . 14
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) . . . . . . . . . . . 9, 10, 11-12
City of Mesquite v. Aladdin's Castle, Inc.,455 U.S. 283 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 16-17
Dan Caputo Co. v. Russian River County Sanitation District,
749 F.2d 571 (9th Cir.1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) . . . . . . . . . . . 14-15
Enrico's, Inc. v. Rice,730 F.2d 1250 (9th Cir.1984) . . . . . . . . . 14
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 n. 3, 15
F.T.C. v. Affordable Media, 179 F.3d 1228 (9th Cir. 1999) . . . . 5-6
Church of Scientology Flag Service Organization, Inc.
v. City of Clearwater,2 F.3d 1514 (11th Cir.1993) . . . . . . . . . 5
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) . 5
E.E.O.C. v. KarenKim, Inc., 698 F.3d 92 (2d Cir. 2012) . . . . . . 16
F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009) . . . . 16
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F.T.C. v. Affordable Media, 179 F.3d 1228 (9th Cir. 1999) . . . . 6-7
Garcia v. Lawn, 805 F.2d 1400 (9th Cir. 1986) . . . . . . . . . . . . . 13-14
Maine Human Rights Comm'n v. City of Auburn,425 A.2d 990 (Me. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20
Matter of Combined Metals Reduction Co.,
557 F.2d 179 (9th Cir.1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
N.A.A.C.P. v. City of Evergreen, Ala.,
693 F.2d 1367 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18
Philips v. Pennsylvania Higher Education Assistance Agency,
657 F.2d 554 (3rd Cir.1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007) . . . . . . . . . . . . 13
Rosemere Neighborhood Ass'n v. U.S. Envtl. Prot. Agency,
581 F.3d 1169 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Solomon v. City of Gainesville,763 F.2d 1212 (11th Cir.1985) . 5
Southern Oregon Barter Fair v. Jackson County,
372 F.3d 1128 (9th Cir.2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Swift & Co. v. United States, 276 U.S. 311 (1928) . . . . . . . . . . . 15
United States v. Oregon State Medical Society,
343 U.S. 326 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. W. T. Grant Co., 345 U.S. 629 (1953) . . . . . . . 5, 7, 9, 15,16
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PLAINTIFFS RESPONSE TO DEFENDANTS
MOTION FOR JUDGMENT ON THE PLEADINGS [DOC. 36]
Plaintiffs concede to the dismissal of John Doe Defendants. Because
the Defendants admitted that the City had delegated responsibility for
administration of the HPD Facebook page to Defendant Lum, additional
discovery is not required to identify other culprits. Also, Plaintiffs concede
to the dismissal of Defendant Lum in his official capacity. It is unclear what
the Defendants stands to gain from such dismissals. But, Plaintiffs agree
generally that Defendant Lum, in his official capacity, is in effect the City.
Plaintiffs do object to the remainder of the Defendants request, i.e.,
an outright dismissal of any claims requesting injunctive relief. The Citys
argument is essentially that this case is moot. Yet, it was only because this
Court compelled the City to correct its illegal conduct at the status
conference held August 22, 2012,1that Defendants, to counsels knowledge,
1Specifically, the day after the Complaint was filed, this Court held a statusconference. The Court informed the City that if the allegations in the
Complaint were true, this Court would have no choice but to issue aTemporary Restraining Order as requested by the Plaintiffs. Thus, this
Court admonished the City to remedy the issue. While counsel cannotremember the exact language the Court chose, it appears that a transcript of
that status conference was preserved and counsel will order the transcript.
Nevertheless, after some discussion between the parties, including the Citys
initial inclination to remove the HPD Facebook page altogether, the Citydecided that no posts would be removed until such time as a policy
*Footnote continued
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first refrained from removing posts from the HPD Facebook page. And, the
policy that was agreed upon by the parties in lieu of formal injunctive relief
was not adopted until some months later.
It clearly took the authority of this Court to effectuate this change.
Indeed, the day that the Complaint in this case was filed, the allegations of
this Complaint appeared on the local evening news. Approximately twenty
minutes later, Defendants (presumably Defendant Lum) posted the following
on the HPD Facebook page:
Aloha HPD Facebook users. We hope the information this site
provides is useful and has value to you as members of thiscommunity. The intent of this site was to utilize current
technology to build law enforecement partnerships with youtoward making Honolulu the safest place to live, work, and
play.
Sharing your experiences with us, either good or bad, is
encouraged. However, misrepresentations calculated to harmthe reputation of the HPD, or others, are considered defamatory
and will be deleted as a violation of the posting guidelines.
We appreciate the opportunities Facebook technology allows us
in sharing information with you. Aloha.
This posting is attached as Exhibit One. In other words, as of August 21,
2013, following the filing of the Complaint, it was the intent of the Citys
governing the removal of speech from the HPD Facebook page wasnegotiated with the assistance of the ACLU and approved by the Plaintiffs.
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delegate, Defendant Lum, to continue to remove any and all posts criticizing
the HPD. That post was unsurprisingly removed following the Status
Conference of August 22, 2013.
Moreover, it was only following the status conference and the Citys
resulting decision to decline to remove anyinterim postings (during the time
the policy was being negotiated) that the ban was lifted, allowing Mr.
Baker and Mr. Scammon to again participate in the public forum, i.e., the
HPD Facebook page. The Citys current contention that Plaintiffs had
several of their postings removed and were temporarily unable to post on
HPDs Facebook Page . . . harms [that] ended before they filed the instant
action is simply untrue. [Doc. 36-1, p. 6] It is unclear to the undersigned
how the City interprets the statements in the Complaint and/or the Concise
Statement of Facts [Doc. 35] that Mr. Scammon and Mr. Baker were
banned for some time prior to the filing of the Complaint as some
admission that the ban was lifted before the filing of the Complaint.2 [See
2
Paragraph 8 of Doc. 35 states: HPD Banned Plaintiff Christopher Bakerfrom Posting on its facebook page for a period of time prior to the filing of
Plaintiffs Complaint. Paragraph 10 states the same for Plaintiff Scammon.
Paragraphs 20 and 22 of the Complaint [Doc. 1] state essentially the same.
And, the City admitted that Mr. Baker was banned from participating in theforum. Doc. 35-3, pp. 7-8 (Request for Admission Number 15). The City
*Footnote continued
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Doc. 36, p. 6] Such was certainly not the case. See Declaration of
Christopher Baker, attached. Indeed, the lifting of the ban was specifically
requested in both the Motion for Temporary Restraining Order [Doc. 6, p. 2]
and the Motion for Preliminary Injunction. [Doc. 7, p. 2; Doc. 7-1, p. 15]
Further, in order to resolve the preliminary injunction, the parties,
with the assistance of the ACLU, negotiated a policy to govern the removal
of Facebook posts. That is why the Court deemed the Preliminary
Injunction Motion moot solely because the parties agreed to
implementation of the policy in lieu of burdening the Court with deciding
the extent of preliminary injunctive relief to which Plaintiffs were entitled.
[Compare Doc. 36-1, p. 6] This has absolutely no effect on the standing,
mootness, or merits of the controversy before this Court.3
It is longstanding and undeniable that the instant lawsuit presents a
case in controversy, Plaintiffs have standing, and the claims are not moot.
admitted the same as to Plaintiff Scammon. Doc. 35, p. 11 (Request for
Admission Number 23).
3Notably, even if this Court denied the Motion for Preliminary Injunction on
the merits, which it certainly did not, it would make no differencewhatsoever. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),Inc., 528 U.S. 167, 192-93 (2000) (Denial of injunctive relief does not
necessarily mean that the district court has concluded there is no prospect offuture violations for civil penalties to deter.).
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The Citys argument is essentially that its voluntary cessation of this
illegal activity (despite this cessation clearly being compelled by this Court
as evidenced by the record of this case and the HPD Facebook post of
August 21, 2012) somehow renders Plaintiffs claims moot. This argument
has been squarely rejected by our appellate courts for decades:
Both sides agree to the abstract proposition that voluntary
cessation of allegedly illegal conduct does not deprive thetribunal of power to hear and determine the case, i.e., does not
make the case moot. A controversy may remain to be settled in
such circumstances, a dispute over the legality of the challengedpractices. The defendant is free to return to his old ways. This,together with a public interest in having the legality of the
practices settled, militates against a mootness conclusion. For tosay that the case has become moot means that the defendant is
entitled to a dismissal as a matter of right, The courts haverightly refused to grant defendants such a powerful weapon
against public law enforcement.
United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953) (citations
omitted); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289
(1982) (It is well settled that a defendants voluntary cessation of a
challenged practice does not deprive a federal court of its power to
determine the legality of the practice.); Philips v. Pennsylvania Higher
Education Assistance Agency, 657 F.2d 554, 56970 (3rd Cir.1981), cert.
denied,455 U.S. 924 (1982); Solomon v. City of Gainesville,763 F.2d 1212
(11th Cir.1985); Church of Scientology Flag Service Organization, Inc. v.
City of Clearwater,2 F.3d 1514 (11th Cir.1993).
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Thus, the Ninth Circuit has rightfully observed that while the actions
of a victim may render injunctive relief moot, it is much more difficult for a
perpetrator to render injunctive relief moot:
The Andersons contend that [v]oluntary cessation of anunlawful course of conduct precludes the issuance of an
injunction if there is no cognizable danger of recurrent
violations. Appellants' Opening Brief at 28. Contrary to the
Andersons' assertion, however, it is actually well-settled that
an action for an injunction does not become moot merelybecause the conduct complained of was terminated, if there is a
possibility of recurrence,since otherwise the defendant's would
be free to return to [their] old ways. FTC v. AmericanStandard Credit Systems, Inc. 874 F.Supp. 1080, 1087(C.D.Cal.1994) (quoting Allee v. Medrano,416 U.S. 802, 811,
94 S.Ct. 2191, 40 L.Ed.2d 566 (1974)) (internal citationsomitted) (emphasis added).
In part, the Andersons' misunderstanding may involve a
misunderstanding of the difference between the effect of theperpetrator's conduct, as compared to the victim's conduct, on
the need for injunctive relief. The difference is that the victim
can moot her need for injunctive relief by her own conduct, butthe alleged wrongdoer cannot moot the need for injunctive
relief as easily. This confusion becomes apparent from the cases
upon which the Andersons rely. If an employee leaves theemploy of an employer, she cannot obtain injunctive relief to
prevent her former employer from engaging in future retaliationin the workplace. See Taylor v. Resolution Trust Corp.,56 F.3d
1497, 1502 (D.C.Cir.1995). It would obviously be a differentcase if an employerclaimed that an injunction to prevent future
retaliation against current employees was no longer necessarybecause the employer had stopped retaliating against its
employees in the workplace.
It is possible, of course, that a defendant's conduct can moot theneed for injunctive relief, but the test for mootness in cases
such as this is a stringent one.United States v. Concentrated
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Phosphate Export Ass'n., Inc.,393 U.S. 199, 203, 89 S.Ct. 361,
21 L.Ed.2d 344 (1968). The reason that the defendant's conduct,in choosing to voluntarily cease some wrongdoing, is unlikely
to moot the need for injunctive relief is that the defendant could
simply begin the wrongful activity again: Mere voluntarycessation of allegedly illegal conduct does not moot a case; if it
did, the courts would be compelled to leave [t]he defendant ...free to return to his old ways. Id. (quoting United States v.W.T. Grant Co.,345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303
(1953)).
F.T.C. v. Affordable Media, 179 F.3d 1228, 1237-38 (9th Cir. 1999).
In fact, voluntary cessation of illegal conduct only renders a claim
moot if the defendant can demonstrate that there is no reasonable
expectation that the wrong will be repeated. W.T. Grant Co., 345 U.S. at
633; Barnes v. Healy, 980 F.2d 572 at 580 (9th Cir. 1992) (citations
omitted). The defendants burden is a heavy one, Id., and one that the
Defendants in this case have not even attempted to satisfy in its motion. The
Ninth Circuit has adopted the following formulation of the law in this
regard:
Voluntary cessation of an illegal course of conduct does notrender moot a challenge to that course of conduct unless (1)
there is no reasonable expectation that the wrong will berepeated, and(2) interim relief or events have completely and
irrevocably eradicated the effectsof the alleged violation.
Barnes, 980 F.2d at 580 (citations omitted) (emphases added).
Defendants could not show under the circumstances of this case that
interim relief or events have completely and irrevocably eradicated the
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effects of the alleged violation. Defendants are simply requesting to be left
to their old ways.
Defendant Lum, who expressed his intent to continue deletions of
postings and/or banning of posters even after the filing of this lawsuit,
apparently still administers the HPD Facebook page. There is no evidence
of so much as a reprimand for his conduct in this case. Moreover, the policy
that was negotiated to dispose of the Preliminary Injunction was simply a
Memorandum sent to All Departments outlining the types of comments
that may be removed and directing the agency to review the proposed
deletion with the Department of Corporation Counsel. There is no
indication of a formal adoption of this policy by City Council or any other
formal administrative promulgation procedures. Thus, Defendants are free
to simply continue to remove posts and ban participation in the forum once
this lawsuit is resolved. And, most importantly, the harm suffered continues
even today as Plaintiffs deleted posts were never restored as specifically
requested in the Motion for Preliminary Injunction, [Docs. 7, 7-1] which,
along with the lifting of the ban represent the crux of this lawsuit. The
effects of the illegal conduct simply have not been completely or irrevocably
eradicated and there is a clear risk of the harm continuing and being
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repeated. Clearly, this Court should not deem Plaintiffs claims for
injunctive relief moot as asserted by the Defendants.
The City relies solely on two cases for its assertion of mootness.
First, the City relies on City of Los Angeles v. Lyons, 461 U.S. 95, 101
(1983). There, a police officer had allegedly choked Mr. Lyons following a
traffic stop. Id. at 97-98. Mr. Lyons sought broad injunctive relief against
the use of chokeholds by all LAPD officers except in very limited
circumstances. Id. at 98. During litigation, five more deaths occurred as a
result of LAPD chokeholds. Id. at 100. And, the Board of Police
Commissioners instated a six month moratorium on the use of chokeholds.
Id.
The United States Supreme Court clearly found (agreeing with the
City Defendant in that case) that a mere moratorium on potentially
unconstitutional behavior did not render the claims moot: [w]e agree with
the City that the case is not moot, since the moratorium by its terms is not
permanent. Intervening events have not irrevocably eradicated the effects of
the alleged violation. Lyons, 461 U.S. at 101 (citations omitted).
However, the Court found there was no case or controversy because there
was no indication that Mr. Lyons would ever again be stopped by a police
officer who would illegally choke him:
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In order to establish an actual controversy in this case, Lyons
would have had not only to allege that he would have anotherencounter with the police but also to make the incredible
assertion either, (1) that all police officers in Los Angeles
always choke any citizen with whom they happen to have anencounter, whether for the purpose of arrest, issuing a citation
or for questioning or, (2) that the City ordered or authorizedpolice officers to act in such manner.
Id. at 105-06.
In contrast, the facts of this case are that the Defendants were at the
very least informally compelled by this Court to correct the wrongdoing only
after the filing of this lawsuit. That fact, alone, cuts heavily against the
Defendants instant argument. It is the duty of the courts to beware of
efforts to defeat injunctive relief by protestations of repentence and reform,
especially when abandonment seems timed to anticipate suit, and there is
probability of resumption. United States v. Oregon State Medical Society,
343 U.S. 326, 333 (1952). To accept such protestation and cessation at face
value free to return to his [or her] old ways. W.T. Grant, supra,345 U.S.
at 632.
Nevertheless, following this Courts admonishment of August 22,
2012, the City has apparently sent a memorandum to various City
Departments requesting compliance with the negotiated policies, citing
potential legal exposure as the reason for the request. The same offending
administrator (i.e., Defendant Lum), who expressed his intent to continue to
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engage in the illegal conduct even after the filing of this lawsuit, is believed
to continue to administer the HPD Facebook page, with no known corrective
action taken against him. And, there is nothing requiring continued
compliance with the policy. Thus, if Plaintiffs post on City Facebook pages,
as they intend to do, they are subject to unconstitutional action by the same
actors. Thus, the risk of such action occurring after the resolution of this
lawsuit remains very real. Moreover (and again), not only is future harm
foreseeable, but it is continuing today. Plaintiffs posts have not been
restored. This alone distinguishes this case from those relied upon by the
Defendants.
The Lyons Court also discussed the second case relied upon by the
City as follows:
In O'Shea v. Littleton,414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d674 (1974), we dealt with a case brought by a class of plaintiffs
claiming that they had been subjected to discriminatory
enforcement of the criminal law. Among other things, a countymagistrate and judge were accused of discriminatory conduct in
various respects, such as sentencing members of plaintiff's classmore harshly than other defendants. The Court of Appeals
reversed the dismissal of the suit by the District Court, rulingthat if the allegations were proved, an appropriate injunction
could be entered.
We reversed for failure of the complaint to allege a case or
controversy. Although it was claimed in that case that particular
members of the plaintiff class had actually suffered from thealleged unconstitutional practices, we observed that [p]ast
exposure to illegal conduct does not in itself show a present
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case or controversy regarding injunctive relief ... if
unaccompanied by any continuing, present adverse effects.Past wrongs were evidence bearing on whether there is a real
and immediate threat of repeated injury. But the prospect of
future injury rested on the likelihood that [plaintiffs] will againbe arrested for and charged with violations of the criminal law
and will again be subjected to bond proceedings, trial, orsentencing before petitioners. The most that could be said for
plaintiffs' standing was that if[plaintiffs] proceed to violate an
unchallenged law and ifthey are charged, held to answer, and
tried in any proceedings before petitioners, they will be
subjected to the discriminatory practices that petitioners arealleged to have followed. We could not find a case or
controversy in those circumstances: the threat to the plaintiffs
was not sufficiently real and immediate to show an existingcontroversy simply because they anticipate violating lawfulcriminal statutes and being tried for their offenses.... It was to
be assumed that [plaintiffs] will conduct their activities withinthe law and so avoid prosecution and conviction as well as
exposure to the challenged course of conduct said to befollowed by petitioners.
Lyons, 461 U.S. at 102-03. In other words, because those Plaintiffs were
expected to comply with valid criminal law, they should never again be
subject to the discrimination claimed in their lawsuit.
In contrast, in this case, Plaintiff Baker has attached a Declaration
evidencing his intent to engage in future conduct that epitomizes legal and,
indeed, closely protected conduct in American society i.e., political
dissent. Declaration of Christopher Baker. Clearly, unlike the Plaintiffs in
OShea, supra., Mr. Baker is entitled to engage in the desired conduct.
Moreover, unlike the Plaintiffs inLyons,supra., the likelihood of encounters
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with the same offending actors is not only likely but inevitable. Notably,
such stated intent is all that the Ninth Circuit requires before flatly rejecting
a Defendants claim that voluntary cessation renders claims for injunctive
relief moot. Rosemere Neighborhood Ass'n v. U.S. Envtl. Prot. Agency, 581
F.3d 1169, 1174 (9th Cir. 2009) (the burden is not on [Plaintiff] to show it
will file another complaint. The burden is on the [Defendant] to show that
[Plaintiff] will notdo so. The Defendants attempt to reverse this burden is
insufficient to show mootness. . . . More importantly, when there is an
argument about whether a plaintiff will again encounter a challenged
activity, this court has required little more than what [Plaintiff] has already
supplied: a stated intention to resume the actions that led to the litigation.);
see also Porter v. Bowen, 496 F.3d 1009, 1014-15 (9th Cir. 2007); Southern
Oregon Barter Fair v. Jackson County, 372 F.3d 1128 (9th Cir.2004). On
the other hand, a mere stated intention that this situation will not recur . . .
[is not] sufficient to deprive this Court of its constitutional power to
adjudicate this case. Armster v. U.S. Dist. Court, 806 F.2d 1347, 1359 (9th
Cir. 1986).
Indeed, it appears that the Ninth Circuits willingness to hold that a
lawsuit is moot due to cessation of conduct is limited to circumstances
where the action which rendered the lawsuit moot was irreversible, and no
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effective relief was available. Garcia v. Lawn, 805 F.2d 1400, 1403-04
(9th Cir. 1986) (finding that a case where a DEA Agent claimed his transfer
was illegal retaliation to past litigation was not moot despite the DEA Agent
having been terminated since the commencement of the lawsuit)
(distinguishingDan Caputo Co. v. Russian River County Sanitation District,
749 F.2d 571, 574 (9th Cir.1984) (action to enjoin performance of contract
mooted by virtue of the completion of the contract); Enrico's, Inc. v. Rice,
730 F.2d 1250, 1254 (9th Cir.1984) (issue on appeal mooted by virtue of
intervening decision by a California state court interpreting California state
law); Canez v. Guerrero, 707 F.2d 443, 446 (9th Cir.1983) (action as to
procedures used in a union election mooted because the election had
occurred and the complainants had been victorious); Matter of Combined
Metals Reduction Co., 557 F.2d 179, 192 (9th Cir.1977) (action as to the
appropriate disposition of property of a bankrupt company mooted because
the sale and lease of the property in question had been completed pursuant to
a valid order of the district court)). In sum, absent some extraordinary
showing by the Defendants, [o]nce a defendant has engaged in conduct the
plaintiff contends is unlawful and the courts have devoted resources to
determining the dispute, there is Article III jurisdiction to decide the case as
long as the parties [do not] plainly lack a continuing interest....Demery v.
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Arpaio, 378 F.3d 1020, 1026 (9th Cir. 2004) (quoting Friends of the Earth,
Inc,528 U.S. at 192)). Defendants Motion should be denied.
Not only are the claims clearly viable at present, but the injunctive
relief should be granted via Plaintiffs pending Motion for Summary
Judgment or upon finding of facts at trial. The purpose of an injunction
deals primarily, not with past violations, but with threatened future ones;
and that an injunction may issue to prevent future wrong, although no right
has yet been violated. Swift & Co. v. United States, 276 U.S. 311, 326
(1928). Accordingly, [a]long with its power to hear the case, the court's
power to grant injunctive relief survives discontinuance of the illegal
conduct. W.T. Grant Co., 345 U.S. at 633. However, Plaintiffs must
satisfy the court that relief is needed. The necessary determination is that
there exists somecognizable danger of recurrent violation, something more
than the mere possibility which serves to keep the case alive. Id. (emphasis
added).
Here, there is not merely some cognizable danger of recurrent
violation, the violation has continued throughout this litigation. Specifically,
Plaintiffs protected speech has remained deleted from the HPD Facebook
page with no known efforts by the Defendants to restore the protected
speech. Moreover, Defendant Lum apparently continues to administer the
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page and a mere memorandum, with no known formal adoption by City
Council or otherwise, requests compliance with the policy to which the
parties agreed to satisfy the requested preliminary injunctive relief. Clearly,
a denial of Plaintiffs requested injunctive relief leaves Defendantsfree to
return to his [or its] old ways. W.T. Grant Co.,345 U.S. at 633.
Such injunctions have been issued by a number of courts, including:
The Second Circuit found an abuse of discretion in denying an
injunction in a sexual harassment case despite the termination of the
lone sexual harasser where the offender was a store manager in arelationship with the owner of the store. As in this case, nothingprevented the Store owner from rehiring the offender. E.E.O.C. v.
KarenKim, Inc., 698 F.3d 92, 100-01 (2d Cir. 2012);
The Tenth Circuit upheld an issued injunction where a companys
telephone record search activities were challenged by the Federal
Trade Commission. Despite the company having ceased offeringtelephone records before litigation commenced and having expressed
a willingness to disgorge profits gained by the challenged acts, thecompany remained in the information brokerage business [and,
therefore] had the capacity to engage in similar unfair acts or
practices in the future. F.T.C. v. Accusearch Inc., 570 F.3d 1187,
1201-02 (10th Cir. 2009);
The United States Supreme Court refused to overturn injunctive relief
issued by the lower court despite the Defendants claims of cessation,
finding:
It is well settled that a defendant's voluntary cessation of achallenged practice does not deprive a federal court of its power
to determine the legality of the practice. Such abandonment is
an important factor bearing on the question whether a court
should exercise its power to enjoin the defendant fromrenewing the practice, but that is a matter relating to the
exercise rather than the existence of judicial power. In this case
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the city's repeal of the objectionable language would not
preclude it from reenacting precisely the same provision if theDistrict Court's judgment were vacated.
Aladdin's Castle, 455 U.S. at 289; and
In a case where injunctive relief was granted to one class but notanother, the Ninth Circuit specifically held that the issuance of such
injunctive relief was not moot despite the Defendants voluntary
agreement to comply with the terms of the injunction in regards to allclasses. Although we commend Healy for his willingness to comply
voluntarily with the preliminary injunction, we do not regard thisissue as moot. Absent resolution of the court's conflicting orders, DSS
might find it convenient at any time to dispense with notice to non-
AFDC custodial parents. The entire class is entitled to the protectionof an enforceable order to ensure that past due process violations will
not be repeated. Barnes, 980 F.2d at 580.
This case presents the precise issue as that in Barnes, supra. Specifically,
the City might at any time find it convenient to dispense with the
requirements of the memorandum and dispense with any or all constitutional
safeguards. This would result in the past First Amendment violations being
repeated. And, unless an aggrieved member of the public, willing to bear
the burden of federal litigation, the wrong might never be resolved.
Interestingly, albeit in racial discrimination cases rather than
discrimination based on political viewpoints as presented by this case, courts
have been even more willing to issue injunctive relief despite cessation and
promises of future good behavior. In fact, courts have found a self-imposed
duty to right the wrongs of past discrimination. For example, inN.A.A.C.P.
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v. City of Evergreen, Ala., 693 F.2d 1367, 1370-71 (11th Cir. 1982), the
Eleventh Circuit based its decision to fashion equitable injunctive relief
entirely on the history of Evergreens discrimination against African
Americans in supervisory positions:
But in cases presenting abundant evidence of consistent past
discrimination, injunctive relief is mandatoryabsent clear and
convincing proof that there is no reasonable probability of
further noncompliance with the law. James v. Stockham Valves& Fittings Co.,559 F.2d 310, 354 (5th Cir.1977), cert. denied,
434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). Although
the court found that discrimination no longer exists, the powerto issue an injunction survives discontinuance of the illegalconduct sought to be enjoined. W.T. Grant, supra,345 U.S. at
633, 73 S.Ct. at 897. The district judge clearly erred in statingthat [i]t is insignificant whether this change is due to the filing
of the EEOC charge and this suit. Courts should keep in mindthe oft-repeated observation that reform timed to anticipate or
blunt the force of a lawsuit offer[s] insufficient assurance thatthe practice sought to be enjoined will not be repeated. James
v. Stockham Valves, supra,559 F.2d at 35455. Moreover, even
absent the threat of future discriminatory behavior, the courtshave a duty to correct and eliminate the present effects of past
discrimination.Albemarle Paper Co. v. Moody,422 U.S. 405,
418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975); Morrow v.Crisler,491 F.2d 1053, 1056 (5th Cir.) (en banc), cert. denied,
419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974); NAACP v.Allen, 340 F.Supp. 703, 705 (M.D.Ala.1972), aff'd, 493 F.2d
614 (5th Cir.1974). Considering the district court's finding andthe abundant evidence in the record of consistent past
discrimination, we hold that the denial of injunctive relief wasan abuse of discretion. This case must therefore be remanded
for the district court to fashion an appropriate decree which will
be designed to increase the number of blacks in supervisory
positions in Evergreen's agencies and departments.
Evergreen, 693 F.2d at 1370-71.
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Further where, as here, there has been no evidence that the remedial
measure upon which a Defendant relies in attempting to demonstrate
cessation is, itself, constitutional, other courts have issued injunctive relief
despite cessation of conduct:
At oral argument, counsel for the City contended that the orderenjoining further use of the 1978 oral interview process and
directing them to devise and implement a nondiscriminatoryexamination and hiring procedure for its police department has
been mooted because it has changed that oral interview process.
The fact that the defendant in an equity case has ceased itsunlawful conduct does not deprive the equity court of power tohear and determine the case. United States v. W. T. Grant Co.,
345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953).
Since one of the purposes, if not the principal purpose, of an
injunction is to prevent future violations, the power of a courtof equity to grant such an order survives discontinuance of the
unlawful action.Id. at 633, 73 S.Ct. at 897. In any event, thereis no showing that even the modified oral examination complies
with the law; and furthermore, the Maine Human Rights
Commission, having proved that unlawful discrimination has
existed in the Auburn police hiring process, is entitled topositive action on the City's part to assure the future elimination
of any unlawful bias anywhere in that process. An equity courtshould proceed with restraint in issuing an injunctive order
against a governmental body. See Waite v. Macy, 246 U.S. 606,609, 38 S.Ct. 395, 396, 62 L.Ed. 892 (1918) (Holmes, J.).
Oftentimes a mere declaration of legal rights or of legal ruleswill suffice to govern future official action. Cf. Kelly v. Curtis,
Me., 287 A.2d 426 (1972). There is nothing here to suggest,however, that the Superior Court was not sensitive to those
established equitable principles; and since it retained full powerto issue the injunction even though some modification in the
City's interview process apparently had occurred, no error existsin the first paragraph of the Superior Court's judgment that is
here under review.
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Maine Human Rights Comm'n v. City of Auburn, 425 A.2d 990, 994-95 (Me.
1981).
CONCLUSION
Although failing to decipher what Defendants stand to gain from their
request, Plaintiffs concede to the dismissal of John Doe Defendants and
Defendant Lum in his official capacity. All other relief requested in the
motion should be denied.
DATED: Honolulu, HI; January 3, 2014.
s/Richard L. HolcombRichard L. Holcomb 9177
Attorney for Plaintiffs
CERTIFICATE OF SERVICEOn this, the 3rd of January, 2014, I served the foregoing pleading by electronicallyfiling it with the Courts CM/ECF system, which generated a Notice of Filing and
effects service upon counsel for all parties in the case. I declare under penalty of
perjury that the foregoing is true and correct. Executed this the 3rd day of January,
2014.
s/Richard L. HolcombRichard L. Holcomb 9177
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