~S

44

(Rev. 12107)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I.

Arnold Davis

(a)

PLAINTIFFS

(b)

County

of Residence

of First Listed

Plaintiff

Guam, Guam Election Commission, Alice M_ Taijeron, Martha C_ Ruth, Joseph F. Mesa, Johnny p_ Taitano, Joshua F. Renorio, Donald I Weakley, and Leonardo M, Rapadas, County of Residence of First Listed Defendant _n_'_a _
(IN U.s. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNA TlON CASES, USE TIlE LOCATION OF THE LAND INVOLVED.

DEFENDANTS

(EXCEPT IN U.S. PLAINTIFF CASES)

Mun S'u Park, Caw Offices of Mun Su Park, Suite 102, Isla Plaza 388 South Marine Corps Dr., Tamuning, GU 96913 (671

(c) Attomc?y's

(Finn Name, Address, and Telephone Number)

Attorneys

{If Known)

II.
CJ I

BASIS

OF

JURISDICTION

(Place an "X' in One Box Only)

III.

u.s. Government
Plaintiff u.S. Government Defendant

l!l 3

Federal Question (U.S. Government Not a Party)

CITIZENSHIP OF PRINCIPAL (For Diversity Cases Only) PTF DEF Citizen of This State CJ I CJ I

an "X" in One Box for Plaintiff and One Box for Defendant) PTF DEF Incorporated or Principal Place CJ 4 CJ 4 of Business In This State PARTIES(Place Incorporated and Principal Place of Business In Another State Foreign Nation

CJ 2

CJ 4 Diversity
(Indicate Citizenship of Parties in Item Ill)

Citizen of Another State

CJ 2 CJ 3

CJ 2 CJ 3

CJ 5 CJ 6

CJ 5 CJ 6

CJ 110 Insurance CJ 120 Marine CJ 130 Miller Act

CJ 152 Recovery of Defaulted
Student Loans (Excl. Veterans) o 153 Recovery of Overpayment of Veteran's Benefits o 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability CJ 196 Franchise

CJ CJ CJ CJ CJ CJ

o o

PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal

PERSONAL INJURY 362 Personal Injury _ Med. Malpractice CJ 365 Personal Injury _ Product Liability CJ 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY CJ 370 Other Fraud CJ 371 Truth in Lending CJ 380 Other Personal Property Damage CJ 385 Property Damage Product Liability

CJ

610 Agriculture 620 Other Food & Drug CJ 625 Drug Related Seizure of Property 21 USC 881 630 Liquor Laws 640 R.R. & Truck

CJ 422 Appeal 28 USC 158 CJ 423 Withdrawal
28 USC 157

CJ 820 Copyrights CJ 830 Patent

o

840 Trademark

Act

CJ 720 LaborIMgmt. Relations CJ 730 Labor/Mgmt.Reporting
& Disclosure Act 740 Railway Labor Act CJ 790 Other Labor Litigation 791 Empl. Ret.lnc. Security Act

C

'~~!!~!~~~~~!f~~~i1iiiE[2]~~~~~!~~!~iCJ CJ 220 CJ 230 CJ 240 CJ 245 CJ 290
210 Land Foreclosure Rent Lease & Ejectment Torts to Land Tort Product Liability All Other Real Property

441 Voting 442 Employment 443 Housing! Accommodations 444 Welfare 445 Amer. w/Disabilities _ Employment 446 Amer. w/Disabilities _ Other 440 Other Civil Rights

510 Motions to Vacate Sentence Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rigbts 555 Prison Condition

870 Taxes (U.S. Plaintiff or Defendant) 871 IRS-Third Party 26 USC 7609

State Reapportionment Antitrust Banks and Banking Commerce Deportation Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 CablclSat TV 810 Selective Service 850 Securities/Commodities! Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters CJ 894 Energy Allocation Act CJ 895 Freedom of Information Act CJ 900Appeal of Fee Determination Under Equal Access to Justice CJ 950 Constitutionality of State Statutes

400 410 430 450 460 470

V.
~I

ORIGIN Original Proceeding

o

(Place an "X" in One Box Only)

2

Removed from State Court

03

Remanded Appellate

from Court

o

7

Appeal to District Judge from Magistrate Jud enr

VII.

REQUESTED COMPLAINT:

IN

VIII.

RELATED IF

CASE(S)

ANY

(See instructions):

:Loll
RECEIPT #

-------

AMOUNT

------------

APPLYING IFP

-----------

JUDGE

--------DISTRICT COURT Of GUAM

HAGATNA, GUAM

.'

MUNSUPARK LAW OFFICES OF PARK AND ASSOCIATES Suite 102, Isla Plaza 388 South Marine Corps Drive Tamuning, GU 96913 Tel: (671) 647-1200 Fmc (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) 556-6540 (pro Hac Vice Application Pending) MICHAEL E. ROSMAN CENTER FOR INDIVIDUAL RIGHTS 1233 20th St. NW, Suite 300 Washington, DC 20036 Tel: (202) 833-8400 Fax: (202) 833-8410 (Pro Hac Vice Application Pending)

D1S~~~~D

'-'oft! OF GUAM

NOV 222011 .1EANNtG

CL£JUc 0' QUlNATA
'COURT

UNITED STATES DISTRICT COURT DISTRICT OF GUAM

------------------------------------------------------------------------x
Arnold Davis, on behalf of himself and all others similarly situated, Plaintiff, v. Guam, Guam Election Commission, Alice M. Taijeron, Martha C. Ruth, Joseph F. Mesa, Johnny P. Taitano, Joshua F. Renorio, Donald I. Weakley, and Leonardo M. Rapadas, Defendants.

CivNo.

'1-00035

Civil Action COMPLAINT

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

c

Introduction

1.

This is a civil rights action alleging discrimination in voting in violation of

Section 2 of the Voting Rights Act of 1965 and various other civil rights laws, constitutional provisions, and the Organic Act of 1950. The scheme defendants are implementing is simple and straightforward. Under Guam law, a plebiscite is to be held concerning Guam's future relationship to the United States. Only "Native Inhabitants of Guam" will be permitted to vote, and only those meeting the statutory defmition of that phrase are currently being registered to vote. Plaintiff and all those similarly situated - those who do not meet the definition of Native Inhabitant of Guam - are precluded from registering to vote. Further, unless this Court enjoins defendants from pursuing their current course of action, plaintiff and all those similarly situated will not be permitted to vote in this crucial election concerning the future of Guam and, indeed, their own future.

Jurisdiction And Venue

2.

This action alleges discrimination in violation of federal law. This Court has

jurisdiction pursuant to 42 U.S.C. §§ 1331 and 1343, and 48 U.S.C. § 1424(b).

3.

Defendants are Guam, an entity that is part of the government of Guam, and

officials of that entity. Their actions are taking place on Guam. Accordingly, venue is appropriate in this Court.

2

Parties

4.

Defendant Guam is a Territory of the United States. The structure of its

government was set forth in the Organic Act passed by Congress in 1950.

5.

Defendant Guam Election Commission is an agency of the government of Guam

formed pursuant to Guam law.

6.

Defendants Alice M. Taijeron, Martha C. Ruth, Joseph F. Mesa, Johnny P.

Paitano, Joshua Tenorio, and Donald 1. Weakley are members of the Guam Election Commission. Leonardo M. Rapadas is the Attorney General of Guam and responsible for the enforcement of the criminal law on Guam. All of the defendants listed in this paragraph are sued in their official capacities for injunctive and declaratory relief.

7.

Plaintiff Arnold Davis is a resident of Guam.

8.

Title 1, Chapter 21, Section 2110 states that the defendant Guam Election

Commission (the "Election Commission") shall conduct a Political Status Plebiscite in which voters will vote on Guam's future relationship with the United States. The options available in this plebiscite will be independence, free association, and statehood.

9.

As codified by the Official Compiler of Guam laws, Title 1, Chapter 21 is entitled

as follows: "Commission on Decolonization for the Implementation and Exercise of Chamorro SelfDetennination." "Chamorro" is a racial group that is usually defmed by connections to and 3

lineage with the groups of native peoples that inhabited Guam prior to the influx of people from Western Europe and the United States.

10.

Section 2110 further provides that "[p ]ersons eligible to vote in the plebiscite

shall include those persons designated as Native Inhabitants of Guam, as defined within this Chapter ... , who are eighteen (18) years of age or older on the date of the 'Political Status Plebiscite' and are registered voters on Guam."

11.

Title 1, Chapter 21, Section 2102 defmes "Native Inhabitants of Guam" as "those

persons who became U.S. Citizens by virtue of the authority and enactment of the 1950 Organic Act of Guam and descendants of those persons."

12.

Section 4 of the 1950 Organic Act of Guam amended the Nationality Act of 1940

to add sections declaring that certain individuals who were born on Guam or who were inhabitants of Guam at various points of time, and meeting certain other requirements, were United States citizens as of the date of the Act's enactment (August 1, 1950). Act of August 1, 1950, § 4, 64 Stat. 384.

13.

The Nationality Act of 1940 (including the parts added by the 1950 Organic Act

of Guam) was repealed in 1952. Act of June 27, 1952, § 403(a)(42), 66 Stat. 280. Accordingly, the status as United States citizens of those born on Guam after June 27, 1952 is governed by a successor statute, codified at 48 U.S.C. § 1407, not the Organic Act.

14.

The defmition of ''Native Inhabitants of Guam" thus excludes, inter alia, (1) those

living on Guam on August 1, 1950 who already were United States citizens, (2) most of those 4

who immigrated to Guam before August 1, 1950 (the vast majority of whom were not covered by the Organic Act's declaration of citizenship), (3) those who immigrated to Guam after August 1, 1950 who either already were United States citizens or who became United States citizens by authority other than the Organic Act, and (4) those born on Guam after June 27, 1952 (unless they were descendants of Native Inhabitants of Guam).

15.

As the reference in the name of Title 1, Chapter 21, as codified by the Official

Compiler of Guam Law, to "Chamorro Self-Determination" suggests, the definition of "Native Inhabitants of Guam" excludes, and was designed to exclude, most non-Chamorros, including most black, Korean, Chinese, and Filipino citizens of the United States currently living on Guam.

16.

Guam law generally permits United States citizens over the age of 18 years of age

residing in Guam to register to vote at any election held in Guam.

17.

Guam law creates a Guam Decolonization Registry. The purpose of the

Decolonization Registry is to delineate the list of qualified voters for the plebiscite.

18.

Although Title 1, Chapter 21, § 2110 does not specifically preclude anyone from

voting in the plebiscite, the Election Commission has refused to register those who do not meet the definition of Native Inhabitants of Guam for the Decolonization Registry, and it will not permit those not on the Decolonization Registry and/or who do not meet the definition of "Native Inhabitants of Guam" to vote in the plebiscite.

19.

Guam law makes it a crime for anyone to register for the Decolonization Registry

who is not entitled to do so. Those who knowingly allow such individuals to register are also 5

guilty of a crime under Guam law.

20.

Plaintiff is a white, non-Chamorro male. He is a United States citizen, a resident

of Guam, and a registered voter who has voted in the past in many Guam general elections.

21.

Plaintiff does not meet the definition of "Native Inhabitant of Guam." He applied

to register for the plebiscite, but was not permitted to do so because he does not meet the definition of "Native Inhabitant of Guam."

Class Action Allegations

22.

Plaintiff seeks to represent a class, pursuant to Rule 23(b )(2), of all registered

voters on Guam who do not meet the defmition of "Native Inhabitants of Guam." As a consequence of defendants' policies, members of this class cannot register for, and will be unable to vote in, the plebiscite.

23. impracticable.

The class is sufficiently numerous and diffuse that joinder of all members is

24.

There are questions of law common to the class, viz., whether the policy of

precluding those who do not meet the definition of ''Native Inhabitants of Guam" from registering for the plebiscite, or voting in it, is legal.

25.

Plaintiffs claims are typical of those of the class he seeks to represent, and he is

an adequate representative of that class.

6

26.

Defendants have acted andlor threaten to act on grounds generally applicable to

the class thereby making appropriate final injunctive or corresponding declaratory relief.

First Claim for Relief (Against Guam and the Guam Election Committee For Violations Of Section 2 ofthe Voting Rights Act)

27.

Plaintiff incorporates all previous allegations of this complaint.

28.

The definition of "Native Inhabitants of Guam" is designed, in purpose and effect,

to exclude most non-Chamorros and results in a denial or abridgement of the right of citizens of the United States to vote on account ofrace, color, or national origin.

29.

Accordingly, defendants Guam and Guam Election Committee are violating

Section 2 of the Voting Rights Act of 1965,42 U.S.c. § 1973.

Second Claim for Relief (Against The Official Capacity Defendants)

30.

Plaintiff incorporates all previous allegations of this complaint.

31.

The official capacity defendants are preventing plaintiff and others similarly

situated from registering to vote for the plebiscite, and, if they are not enjoined from doing so, will prevent those who do not meet the definition of "Native Inhabitants of Guam" from voting in the plebiscite.

32.

The official capacity defendants are acting under color of Guam law.

33.

The official capacity defendants are engaging in discrimination on the basis of

7

race, color, and/or national origin in violation of the following laws: (1) 42 U.S.C. § 1971, (2) various provisions of the bill of rights contained within (or added to) the Organic Act of 1950, including those currently codified at 48 U.S.C. §§ 1421b(m), 1421b(n) and 1421b(u), and (3) the Fifth, Fourteenth, and Fifteenth Amendments to the United States Constitution.

34.

Each of the laws listed in the last paragraph provides rights that can be enforced

through 42 U.S.C. § 1983. Accordingly, the official capacity defendants are violating Section 1983.

35.

Alternatively, each of the laws identified in paragraph 33 permits those whose

rights are being violated to seek direct redress and equitable relief to halt the violations.

Third Claim for Relief (Against The Official Capacity Defendants)

36.

Plaintiff incorporates all previous allegations of this complaint.

37.

The official capacity defendants are discriminating against plaintiff and others

similarly situated on the basisof their failure to meet the definition of "Native Inhabitants of Guam." Based on this discrimination, they are precluding plaintiff and others from registering, and will prevent them from voting, in the plebiscite.

38.

The official capacity defendants are acting under color of Guam law.

39.

The official capacity defendants are discriminating against plaintiff and others

similarly situated with respect to the fundamental right to vote in violation of the following laws: (1) various provisions of the bill of rights contained within (or added to) the Organic Act of 8

1950, including those currently codified at 48 U.S.C. §§ 1421b(m), 1421b(n) and 1421b(u), and (2) the Fifth and Fourteenth Amendments to the United States Constitution.

40.

Each of the laws listed in the last paragraph provides rights that can be enforced

through 42 U.S.C. § 1983. Accordingly, the official capacity defendants are violating Section 1983.

41.

Alternatively, each of the laws identified in paragraph 39 permits those whose

rights are being violated to seek direct redress and equitable relief to halt the violations.

WHEREFORE, Plaintiff seeks a judgment:

A.

Enjoining defendants from engaging in their current policy of preventing plaintiff,

and all others similarly situated, from registering for, and voting in, the plebiscite;

B.

Enjoining defendants from using the Decolonization Registry, or any voter

registry other than the general voter registry for general elections in Guam, in determining who is eligible to vote in the plebiscite;

C.

Enjoining defendant Rapadas from enforcing that provision of criminal law

making it a crime to register, or allow anyone else to register, for the plebiscite who does not meet the definition of Native Inhabitant of Guam;

D.

Declaring that, defendants' conduct has been, and would be if continued, a

violation oflaw;

9

E. and

Awarding costs and attorneys' fees as authorized by all relevant provisions of law;

F.

Awarding any other appropriate relief.

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) 556-6540 (Pro Hac Vice Application Pending) MICHAEL E. ROSMAN CENTER FOR INDIVIDUAL RIGHTS 1233 20th St. NW, Suite 300 Washington, DC 20036 Tel: (202) 833-8400 Fax: (202) 833-8410 (Pro Hac Vice Application Pending)

10