JOSEPH P. RUSSONIELLO, ET AL., PETITIONERS V. JOSE J. OLAGUES, ET AL. No. 86-1217 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit The Solicitor General, on behalf of Joseph P. Russoniello and David Ilchert, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. TABLE OF CONTENTS Opinions below Jurisdiction Constitutional and statutory provisions involved Questions presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G OPINIONS BELOW The opinion of the en banc Court of Appeals for the Ninth Circuit (App., infra, 1a-38a) is reported at 797 F.2d 1511. The prior panel opinion of the court of appeals (App., infra, 41a-75a) is reported at 770 F.2d 791. The opinion of the United States District Court for the Northern District of California on summary judment (App., infra, 78a-95a) is unreported. The opinion of the district court on motion to dismiss (App., infra, 96a-97a) is unreported. JURISDICTION The judgment of the court of appeals was entered on August 26, 1986. A suggestion for rehearing en banc by the full court of appeals was denied on December 19, 1986. On November 14, 1986, Justice O'connor granted an extension of time to and including January 23, 1987 for the filing of a petition for a writ of certiorari in this case. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Article II of the Constitution provides in pertinent part: The executive Power shall be vested in a President of the United States of America. * * * * * * * * he shall take Care that the Laws be faithfully executed * * *. The Fifth Amendment of the Constitution provides in pertinent part: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *. 42 U.S.C. 1973i(c) provides in pertinent part: Whoever knowingly or willfully gives false information as to his name, address, or period of residence in the voting district for the purpose of establishing his eligibility to register or vote, or conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting, or pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both: Provided, however, That this provision shall be applicable only to general, special or primary elections held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives * * *. QUESTIONS PRESENTED 1. Whether a federal court may, consistent with Article III of the Constitution, consider a pre-indictment challenge to the manner and scope of noncoercive investigatory activities by a United States Attorney. 2. Whether, assuming that Article III in some circumstances allows for pre-indictment judicial review of the manner and scope of noncoercive investigatory activities by a United States Attorney, a federal court may enjoin or declare unconstitutional such activities when those activities were not taken in bad faith or for purposes of harassment, do not violate any clearly established rights, and have not been shown to be devoid of legitimate investigatory purpose. STATEMENT 1. Petitioner, Joseph P. Russoniello, is the United States Attorney for the Northern District of California (App., infra, 3a), and petitioner, David Ilchert, is the District Director in San Franciso for the United States Immigration and Naturalization Service (id. at 5a). In March 1982, Russoniello received information from the Sanat Clara County district attorney which indicated that a substantial number of foreign-born persons who were not United States citizens recently had registered to vote in that county, even though as noncitizens they were ineligible to do so (id. at 25a). Upon inquiry, Russoniello was further informed that many of these noncitizen registrants either did not speak or were not fluent in English and that many had been told by the persons registering them that they were in fact eligible to vote, either because they were married to a United States citizen or because they had resided in this country for a long period (id. at 25a-26a). Based on these facts, Russoniello became concerned that certain persons or organizations were registering or conspiring to register noncitizen voters in violation of 42 U.S.C. 1973i(c) and (d), a statute that he is responsible for enforcing (App., infra, 3a-4a, 25a-26a). Accordingly, on April 19, 1982, Russoniello requested that the district attorneys and voter registrars in nine counties assist him in investigating the extent of noncitizen voter registration in the San Francisco Bay area (App., infra, 26a, 78a-80a). Russoniello explained that, based on the information he had seen, persons who did not understand English were quite susceptible to being confused or misled about their eligibility to vote /1/ and that such noncitizen registrants could be identified by their requests for bilingual ballots (id. at 79-80a). /2/ He proposed that the voter registrar in each county randomly select from public records and submit to him the names of 25 recently-registered, foreign-born voters who had requested bilingual voting ballots, which he would forward to the Immigration and Naturalization Service (INS) for verification of the registrants' citizenship status (ibid.). Russoniello further suggested that, as to registrants whom INS could not positively identify as citizens, the district attorneys should contact the registrants, determine whether they were citizens and, if not, determine who, if anyone, had encouraged them improperly to register (id. at 43a, 80a). He advised that, while he did not intend to prosecute any of the noncitizen registrants, he would seriously "consider" prosecuting any group or individual who had deliberately conspired to register unqualified voters (ibid.). The voter registrars subsequently submitted a total of 168 names to Russoniello, which he forwarded to INS (App., infra, 43a). By reviewing its records, INS determined that 55 of these persons were United States citizens, that 45 were not citizens or were probably not citizens, and that no records existed for the remaining 68 persons (id. at 80a). Russoniello conveyed this information to the local district attorneys in late May 1982 and again asked that they interview any registrant who had not positively been identified as a United States citizen (id. at 5a, 80a). The local district attorneys did so, either by letter or by noncustodial contact (id. at 80a-81a). After reviewing the results of these interviews, Russoniello closed his investigation and elected not to pursue any criminal prosecutions (id. at 7a-8a, 27a, 44a). 2. On May 12, 1982, however, before Russoniello determined to terminate his inquiry, respondents filed this class action against the principal federal and state officials involved in the voting registration fraud investigation (App., infra, 5a). Respondents are (1) a Hispanic-American citizen who was randomly selected for investigation and (2) certain organizations that promote the voting rights of Hispanic and Chinese Americans in the San Francisco Bay area (ibid.). Respondents alleged that the investigation "interfered with their statutorily protected right to participate in the electoral process(,) discriminated against them on the basis of race and national origin(,) and deterred the exercise of their First Amendment right to freedom of association" (id. at 81a). They prayed that the district court award them injunctive, declaratory, and monetary relief (id. at 42a). On the government's motion, the district court on May 24, 1982 dismissed respondents' prayer for injunctive relief, finding "that, as a matter of law, it ha(d) no jurisdiction to enjoin or otherwise control a preliminary investigation of the U.S. Attorney's office" (App., infra, 96a). Then, in ruling on the parties' cross-motions for summary judgment, the court on December 15, 1982 dismissed the remainder of respondents' suit (id. at 81a). In an opinion filed later, the court found that "(t)here is nothing in the record to indicate that the() interviews rose to the level of an involuntary interrogation nor is there any evidence as to any individual being penalized in any way for refusing to cooperate" (id. at 80a-81a), that "all of the information provided by the local defendants and the INS is a matter of public record" (id. at 84a), and that, "(f)aced with evidence indicating the possibility of such a substantial impact on the integrity of the franchise, the United States Attorney ha(d) the right, if not the duty, to at least determine the scope of the actual problem and, if necessary, (to) instigate required remedial action" (id. at 85a). Thus, the court determined that the "defendants' actions did not violate any clearly established right held by either the individual or group plaintiffs to participate in the electoral process" (id. at 88a) and that all defendants, including both petitioners, were entitled to qualified immunity and summary judgment (id. at 95a). 3. A divided panel of the Ninth Circuit affirmed (App., infra, 41a-75a). After determining that the cessation of the investigation did not render the controversy moot (id. at 44a-47a), the court held that, while both the individual and organizational respondents had standing to seek monetary relief, only the organizational respondents had standing to seek equitable relief (id. at 47a-54a). As to the individual respondent, the court found that his allegation that the investigation had a "chilling effect" on him did not present a "justiciable claim" (id. at 49a), and that any "stigma" he suffered from "public disclosure that the investigation was taking place * * * was self-induced" (id. at 50a). As to the organizational respondents, the court found that "their voter registration and educational efforts ha(ve) been hindered as the direct result of the challenged investigation" (id. at 51a), that "they are undoubtably the targets of Russoniello's investigation and may be charged with improperly influencing ineligible persons to register" (id. at 52a), and, accordingly, that they "raise(d) sufficient claims of potential direct injury to both themselves and their members" to have standing to challenge the investigation (id. at 53a). Nevertheless, the court held that none of the respondents were not entitled to any of the relief being sought (App., infra, 54a-69a). The court determined that, while "(t)he district court erred in its ruling that it lacked jurisdiction" to enjoin or otherwise control Russoniello's investigation (id. at 54a), "intrusions into the investigative process of a United States Attorney present 'difficult problems of separation of powers'" (id. at 55a, quoting Jett v. Casteneda, 578 F.2d 842, 845 (9th Cir. 1978)), and therefore that "only in extraordinary circumstances (s)hould (a court) entertain an action to enjoin a prosecutor's investigatory activities" (App., infra, 55a). The court found "no (such) extraordinary circumstances * * * suggested" in the summary judgment record of this case (ibid.), noting that "a United States Attorney is entitled, indeed required, to conduct an investigation into allegations of voting fraud" (id. at 61a), and that the investigation in this case was "reasonably limited in both its scope and its use of classifications" (ibid.). On that premise, the court then determined that "the district court's denial of (injunctive and) declaratory relief was not an abuse of discretion" (id. at 64a), reasoning that respondents sought "a declaration that the government's activities are unlawful" (id. at 63a), and that "the same concerns regarding interference with the activities of prosecuting officials" made both injunctive and declaratory relief improper (id. at 64a). Finally, the court determined that neither the individual nor the organizational respondents were entitled to monetary relief (id. at 66a-69a), finding that the investigation did "not violate any 'clearly established' rights" (id. at 69a) and that "all those sued were entitled at least to qualified, good faith immunity" (id. at 68a). /3/ 4. On petition for rehearing, the court vacated the panel decision and, by a six to five vote, reversed and remanded the case to the district court (App., infra, 1a-38a). Like the panel, the en banc majority found that respondents were not entitled to monetary relief (id. at 23a-24a), reasoning that respondents' suit "raise(d) issues of first impression" (id. at 24a) and that "the government officials did not violate (any) 'clearly established' rights" by the conduct of their investigation (ibid.). Moreover, like the panel, the en banc majority determined that the organizational respondents had standing to seek equitable relief (id. at 12a-15a), finding that the organizations "are undoubtably the targets of Russoniello's investigation and could be charged with improperly influencing ineligible persons to register" (id. at 14a), that "the investigation directly undermined the Organizations' voter education and registration efforts" (ibid.), and that "the Organizations' voter education and registration efforts are unquestionably protected from unwarranted interference by prosecutorial officials" (ibid.). Unlike the panel, however, the en banc majority found that the individual respondent had standing to seek equitable as well as monetary relief (id. at 11a-12a), reasoning that the individual respondent "was stigmatized as a person who might have registered to vote illegally" (id. at 11a) and that "the Government required (him) to prove his citizenship, an affirmative obligation the Government did not place on people who requested English language ballots" (id. at 12a). The en banc majority then turned to respondents' prayers for relief and held that "the district court (had) erred in dismissing the injunctive claims" (App., infra, 15a) and in "appl(ying) the good faith immunity standard * * * to * * * bar() (all) equitable relief" (id. at 16a n.8). Without acknowledging that separation of powers places any constraints on the injunctive authority of the federal courts, the en banc majority determined that the district court had jurisdiction to enjoin the investigation and that the case should be remanded so that the district court could determine whether such an injunction should issue (id. at 15a). Similarly, without discussing whether the separation of powers places any restrictions on the declaratory authority of the federal courts, the en banc majority examined the merits of respondents' substantive claims and declared that "the voter registration fraud investigation directed toward foreign-born, recently registered voters, requesting bilingual ballots involve(d) a suspect classification" (id. at 19a), burdened respondents' "fundamental right" to vote (id. at 20a), and "interfered with their constitutional right of association and political expression" (id. at 22a). /4/ The court then remanded the case with instructions that the district court conduct a trial concerning whether the investigation was conducted by the least "drastic" means available (id. at 19a), whether respondents' right to vote was unduly burdened (id. at 20a), and whether respondents' First Amendment interests outweighed the government's interest in preventing voter registration fraud (id. at 23a). Judge Wallace, joined by Judges Sneed, Alarcon, and Beezer, dissented (App., infra, 25a-36a). /5/ Judge Wallace first argued that the individual respondent did not have standing to seek equitable relief, because "(t)here is little reason to believe that the government will again investigate (him) as a possible noncitizen voter" (id. at 29a), and because "the investigation in this case involved purely voluntary, noncoercive interviews -- with no threat of federal prosecution" (ibid.). He then argued that "(t)he majority neglect(ed) to respect the special limitations on our power to enjoin criminal investigations by the executive branch * * *" (ibid.). While Judge Wallace agreed with the majority that "separation of powers principle(s) may not mandate judicial inaction where the executive outrageously oversteps limitations on prosecutorial power" (id. at 30a), he found "nothing egregious about the prosecutorial conduct in this case" (id. at 31a). In particular, he noted that the United States Attorney had focused his investigation on recently-registered, foreign born voters requesting bilingual ballots only "to narrow his inquiries to those persons who may have (had) knowledge of serious criminal activity" (id. at 33a); that "considerations of national origin or race are relevant in many prosecutorial investigations conducted by the executive branch" (id.at 35a); that any burden created by the investigation was "a burden that all citizens must be asked to bear when they are potential witnesses to unlawful conduct" (id. at 36a); and that neither the review of public records nor the follow-up questioning of potential witnesses "involve(d) any violation of first amendment rights" (ibid.). Accordingly, Judge Wallace concluded that the "requirements for equitable relief against a prosecutorial investigation cannot be met on the facts alleged in this case" (id. at 31a). /6/ REASONS FOR GRANTING THE PETITION This case presents questions of profound importance concerning the relationship between the Executive and Judicial Branches. First, it raises the issue whether a federal court has authority under Article III of the Constitution to consider a pre-indictment challenge to the manner and scope of noncoercive, criminal investigative activities by a United States Attorney. If the Court should conclude that some such authority exists, the case raises a second issue concerning the circumstances in which a federal court may exercise that authority and whether those circumstances exist in this case. Because of the recurrent nature of those issues and their critical significance to both general principles of separation of powers and the effective operation of the federal criminal justice system, this Court's review is warranted. 1. In our view, the district court was without authority to adjudicate either respondents' equitable or monetary prayers for relief in this case, because none of the challenged acts involved the sort of mature, coercive governmental action that is subject to judicial review under this Court's decisions. Rather, those prayers asked the district court to review a United States Attorney's initiation and conduct of a criminal investigation by wholly noncoercive means, actions which are nonjusticiable under Article III of the Constitution. a. Article III of the Constitution does not grant the federal courts "an unconditioned authority to determine the constitutionality of legislative or executive acts" (Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982)). Rather, Article III limits the "judicial power" of the United States to the resolution of "cases" and "controversies." U.S. Const. Art. III, Section 2. "The 'case or controversy' requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded" (Allen v. Wright, 468 U.S. 737, 750 (1984)). It thus acknowledges that certain questions about government are committed to the other Branches (see Powell v. McCormack, 395 U.S. 486, 516-549 (1969)) and thereby states "fundamental limits on (the) federal judicial power in our system of government" (Allen v. Wright, 468 U.S. at 750). As an incident to the elaboration of this bedrock requirement for judicial review, litigants must show that the matters they seek to have adjudicated by the federal courts are judicially cognizable. The doctrines of "'standing(,) * * * mootness, ripeness, political question, and the like -- relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judicial in our kind of government'" (Allen v. Wright, 468 U.S. at 750, quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-1179 (D.C. Cir. 1983) (Bork J., concurring)). This Court has held, for example, that litigants may not invoke the authority of a federal court unless they have suffered a "judicially cognizable injury." See Allen v. Wright, 468 U.S. at 752, 753-756; Linda R.S. v. Richard D., 410 U.S.614, 619 (1973). Likewise, it has held "that an essential prerequisite to (the) assertion (of a constitutional right) is a final and authoritiative" governmental action; "(a) court cannot determine whether a regulation has gone 'too far' unless it knows how far the regulation goes" (McDonald, Sommer & Frates v. County of Yolo, No. 84-2015 (June 25, 1986), slip op. 7). And the Court has concluded that certain questions -- so-called "political questions" -- may not be adjudicated by federal courts at all; they simply "lie() beyond judicial cognizance" (Baker v. Carr, 369 U.S. 186, 217 (1962)). See Coleman v. Miller, 307 U.S. 433 (1939); Oetjen v. Central Leather Co., 246 U.S. 297 (1918). By such doctrines, federal courts are "confine(d) * * * to a role consistent with a system of separated powers and (to disputes) which are traditionally thought to be capable of resolution through the judicial process" (Flast v. Cohen, 392 U.S. 83, 97 (1968)). See generally Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. at 472-473; Baker v. Carr, 369 U.S. at 217-226. These limitations on judicial power have substantial bearing on the relationship between the Judicial and Executive branches in the exercise of the prosecutorial functions. Article II of the Constitution vests the Executive Branch with the exclusive authority to "take Care that the Laws be faithfully executed." See U.S. Const. Art. II, Section 3. This delegation includes the function of the criminal prosecutor and, while much of what the prosecutor does may ultimately be challenged in the course of any proceeding that he initiates, his decisions whether, when, and what sort of cases to initiate accordingly have not been subject to review prior to the bringing of charges. See United States v. Batchedler, 442 U.S. 114, 124 (1979) ("whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion"); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (assuming probable cause, decision whether and what to charge "rests entirely in (the prosecutor's) discretion"); United States v. Nixon, 418 U.S. 683, 693 (1974) ("Executive Branch has exclusive and absolute discretion to decide whether to prosecute a case"); United States v. Thompson, 251 U.S. 407 (1920) (court order quashing indictment for failure to obtain permission of court to resubmit to grand jury invades functions of the United States Attorney and the grand jury); Confiscation Cases, 74 U.S. (7 Wall.) 454, 457 (1868) ("Public prosecutions, until they come before the court to which they are returnable, are within the exclusive discretion of the district attorney"). The "decision to prosecute is particularly ill-suited for judicial review"; "(s)uch factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake" (Wayte v. United States, 470 U.S. 598, 607 (1985)). See also Heckler v. Chaney, 470 U.S. 821, 831-832 (1985) ("the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement"); Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) ("Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought"). For these reasons, the courts have found that private citizens ordinarily lack a judicially cognizable interest in the process employed and decisions reached by the Executive Branch concerning the filing of criminal charges. See Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981); Linda R.S. v. Richard D., 410 U.S. at 619. b. To be sure, once a prosecution is initiated, it is subject to challenge in the ensuing criminal proceeding on a variety of grounds, including the motivations of the prosecutor in bringing it. See Wayte v. United States, 470 U.S. at 608; Bordenkircher v. Hayes, 434 U.S. at 364; Blackledge v. Perry, 417 U.S. 21, 28 (1974). And, even during the investigative phase, certain exercises of governmental power which are "regulatory, proscriptive, or compulsory in nature" may be challenged in court (Laird v. Tatum, 408 U.S. 1, 11 (1972)). Article III does not, for example, prevent a federal court from reviewing claims that an unreasonable "search" or "seizure" of persons or things has occurred (see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)), or that subpoenaed material should not be produced (see Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208 (1946); cf. Branzburg v. Hayes, 408 U.S. 665, 707-708 (1972) (prosecutor may not use grand jury and its subpoena powers as instrument of oppression)). What may not be challenged, though, are the noncoercive information-gathering and deliberative aspects of the investigative process, up to and including the decision to seek a formal charge. In analogous contexts, this Court has made this point explicit. In Laird v. Tatum, 408 U.S. 1 (1972), the Court identified the question presented as "whether the jurisdiction of a federal court may be invoked by a complainant who alleges that the exercise of his First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose" (408 U.S. at 10). The Court answered that question in the negative, reasoning that the Department of Army's investigative and data-gathering activities in that case were not "regulatory, proscriptive, or compulsory in nature" (id. at 11), and the private citizens are not entitled "'to invoke the judicial power to determine the validity of executive * * * action'" in such circumstances (id. at 13, quoting Ex parte Levitt, 302 U.S. 633, 634 (1937)). Similarly, in FTC v. Standard Oil Co., 449 U.S. 232 (1980), a case arising under the Administrative Procedure Act, 5 U.S.C. (& Supp. III) 701 et seq., the Court held that the Federal Trade Commission's issuance of a complaint that it had "reason to believe" that several major oil companies were violating Section 5 of the Federal Trade Commission Act was not "final agency action" subject to judicial review. The Court reasoned that "the Commission's averment of 'reason to believe' * * * (was) not a definitive statement of position" (449 U.S. at 241), but rather "a threshold determination that further inquiry is warranted" (ibid.), and that, since this determination has no "legal or practical effect" except to impose a "burden of responding to the charges made against it" (id. at 242), judicial review would be premature, an "interference with the proper functioning of the agency and a burden for the courts" (ibid.). See also McDonald, Sommer & Frates v. County of Yolo, slip op. 7-12. The Court's requirement in these cases of mature, coercive governmental action as a prerequisite to judicial review ultimately devolves from the separation of powers principles that underlie the "case or controversy" requirement in Article III. When the Executive Branch "does not exercise its coercive power over an individual's liberty or property rights," it "does not infringe upon areas that courts often are called upon to protect" (Heckler v. Chaney, 470 U.S. at 832) (emphasis in original). Thus, judicial review of such Executive Branch activities "would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action" (Laird v. Tatum, 408 U.S. at 15). The constitutional separation of powers precludes courts from assuming this role. See Allen v. Wright, 468 U.S. at 760, quoting Los Angeles v. Lyons, 461 U.S. 95, 112 (1983) ("'(a) federal court * * * is not the proper forum to press' general complaints about the way in which government goes about its business"); Nathan v. Smith, 737 F.2d 1069, 1077 (D.C. Cir. 1984) (Bork J., concurring) (any attempt by the courts to "control the law enforcement decisions of the Attorney General * * * would raise serious constitutional questions relating to the separation of powers"); Reporters Committee for the Freedom of the Press v. American Telephone & Telegraph, 593 F.2d 1030, 1065 (D.C. Cir. 1978), cert. denied, 440 U.S. 949 (1979) ("(t)he balance between the Executive and Judicial branches would be profoundly upset if the Judiciary assumed superintendence over the law enforcement activities of the Executive Branch * * *"); LaRouche v. Webster, 566 F. Supp. 415, 418 (S.D.N.Y. 1983) ("it is not the function of the courts to review the wisdom of the prosecutor's decision to investigate, or to inquire into the prosecutor's motives"); see also Jett v. Casteneda, 578 F.2d 842, 845 (9th Cir. 1978.) /7/ c. In this case, it is quite clear that neither Russoniello nor any of the other government officials involved in the investigation subjected respondents to any coercive investigatory or prosecutorial action. They did not seek a warrant or otherwise conduct any search or seizure of respondents' persons or premises, compel respondents to provide information by subpoena or custodial interrogation, or file any indictments or criminal charges. /8/ Rather, Russoniello requested that the voter registrars of the nine counties randomly select from public records and submit to him the names of 25 recently-registered foreign born voters who had requested bilingual ballots; INS then verified the citizenship status of the names submitted to Russoniello; and, on receiving INS's report from Russoniello, the district attorneys conducted noncustodial interviews of any individual's whom INS was unable positively to identify as citizens. As the district court noted, "all of the information provided by the local defendants and INS (was) a matter of public record" (App., infra, 84a); "(t)here is nothing in the record to indicate that the() interviews rose to the level of an involuntary interrogation" (id. at 80a-81a); "nor is there any evidence as to any individual being penalized in any way for refusing to cooperate" (id. at 81a). In short, there is no basis for suggesting that any aspect of this investigation was coercive or that government officials were doing anything other than conducting a preliminary inquiry concerning whether a fuller grand jury investigation or criminal prosecution might be warranted. Accordingly, the district court should have been held without authority to review the manner and scope of these government officials' investigative actions. d. Respondents' allegation of "chilling effect" resulting from the investigation does not render their claims justiciable. See Laird v. Tatum, 408 U.S. at 13-15. Nor does their allegation of "stigma" make those claims judicially cognizable. See Allen v. Wright, 468 U.S. at 753-756. Rather, just as "the expense and annoyance of litigation is 'part of the social burden of living under government'" (Petroleum Exploration, Inc. v. Public Service Comm'n, 304 U.S. 209, 222 (1938) (citation omitted)), so too is the expense and annoyance of being identified as a witness or suspect in connection with possible criminal activity a price of living in a society committed to law enforcement. See FTC v. Standard Oil Co., 449 U.S. at 244; Laird v. Tatum 408 U.S. at 11-15; Younger v. Harris, 401 U.S. 37, 46-47 (1971); Jones v. Unknown Agents of the Federal Election Comm'n, 613 F.2d 864, 877-878 (D.C. Cir. 1979), cert. denied, 444 U.S. 1074 (1980); LaRouche v. Webster, 566 F. Supp. 415, 418 (S.D.N.Y. 1983). In the absence of governmental action that is "regulatory, proscriptive, or compulsory in nature," allegations of "chill" and "stigma" are simply inadequate to make governmental action judicially reviewable. The court of appeals' contrary judgment spells great mischief for the orderly administration of law by both the Executive and Judicial Branches. Authorizing federal courts to review the noncoercive aspects of criminal investigations will allow resourceful and obstreperous litigants to divert the courts' and the prosecutors' "energy and attention * * * from the pressing duty of enforcing the criminal law" (Imbler v. Pachtman, 424 U.S. 409, 425 (1976)). Moreover, anticipatory judicial intervention into the investigatory process will deny prosecutors an opportunity to correct their own mistakes and lead to piecemeal review (FTC v. Standard Oil Co., 449 U.S. at 243), "delay() the criminal proceeding, threaten() to chill law enforcement by subjecting the prosecutor(s') motives and decisionmaking to outside inquiry, and * * * undermine prosecutorial effectiveness by revealing the Government's enforcement policy" (Wayte v. United States, 470 U.S. at 607). Indeed, allowing such challenges will create an incentive for prosecutors to forgo particular investigations and certain sources of evidence, to resort to the grand jury to investigate possible criminal activity (rather than use the less intrusive means available to prosecutors' offices), and, if necessary, to pursue prosecutions without having fully investigated all circumstances surrounding a case. See generally Butz v. Economou, 438 U.S. 478, 509-517 (1978); United States v. Lovasco, 431 U.S. 783, 792-796 (1977); Imbler v. Pachtman, 424 U.S. at 424-431. This Court's immediate intervention is necesasary to preserve "the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system" (id. at 427-428). 2. While we submit that there can be no occasion justifying pre-indictment judicial review of investigative activities by a United States Attorney that are not "regulatory, proscriptive, or compulsory in nature," should the Court disagree on that point, there remains a substantial question concerning whether such review was justified in the circumstances presented here. The court of appeals held that, although the government officials had a legitimate investigatory purpose and did not violate any clearly established rights, a remand was necessary so that the district court could (1) reassess whether injunctive relief should issue and (2) hold a trial concerning whether Russoniello's investigation was conducted by the least restrictive means available, whether the investigation unduly burdened respondents' fundamental right to vote, and whether the government's interest in preventing voter registration fraud outweighed respondents' First Amendment rights. This holding grossly departs from settled principles of equity jurisprudence and constitutes an unwarranted and unprecedented interference with the prosecutorial activities of the Executive Branch. a. The Constitution's clear delegation of authority to the Executive Branch to conduct investigations and to present criminal charges is complemented by the "basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief" (Younger v. Harris, 401 U.S. 37, 43-44 (1971)). This doctrine "prevent(s) erosion of the role of the jury and avoid(s) a duplication of legal proceedings and legal sanctions where a single suit would be adequate to protect the rights asserted" (id. at 44). Thus, this Court has long held that "in the absence of exceptional circumstances creating a threat of irreparable injury 'both great and immediate,' a federal court must not intervene by way of either injunction or declaratory judgment" in an ongoing state criminal prosecution (Kugler v. Helfant, 421 U.S. 117, 123 (1975)). See also Perez v. Ledesma, 401 U.S. 82, 85 (1971) (equitable relief against state prosecutions is available "(o)nly in cases of proven harassment or prosecution undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances"). While this limitation on the equity power has been repeatedly articulated in cases dealing with the authority of federal courts to intervene in pending state criminal cases (see, e.g., Trainor v. Hernandez, 431 U.S. 434, 446-447 (1977); Kugler v. Helfant, 421 U.S. at 123-125; Younger v. Harris, 401 U.S. at 43-44; Dombrowski v. Pfister, 380 U.S. 479, 482 (1965)), or to oversee state law enforcement practices (see, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983); Rizzo v. Goode, 423 U.S. 362, 379 (1976)), no less restriction on judicial power can apply where noncoercive federal criminal investigative activities are concerned. Such governmental activities are almost always less directly intrusive on the interests of those on whom the investigation touches than is a pending prosecution where charges have been filed. Moreover, the separation of powers concern to protect the United States Attorney's investigative authority, like the federalism concern at work in Younger and Lyons, /9/ imposes an additional limiting factor on the equitable discretion of the federal courts. See Allen v. Wright, 468 U.S. at 760, quoting O'Shea v. Littleton, 414 U.S. 488, 499 (1974) ("(c)ase or controversy considerations * * * 'obviously shade into those determining whether the complaint states a sound basis for equitable relief'"). For these reasons, with the exception of the court below, the lower federal courts have uniformly accorded federal criminal investigations no less protection from judicial scrutiny than Younger accorded state criminal prosecutions. Those courts have thus held that such investigative activities may be enjoined or declared unconstitutional only in the most extraordinary circumstances. See, e.g., Reporters Committee for Freedom of the Press v. American Telephone & Telegraph, 593 F.2d 1030, 1065 (D.C. Cir. 1978); Jett v. Casteneda, 578 F.2d 842, 845 (9th Cir. 1978); LaRouche v. Webster, 566 F. Supp. 415, 417 (S.D.N.Y. 1983); see also In re Grand Jury of the Southern District, 508 F. Supp. 1210, 1214 (S.D. Ala. 1980); Pollard v. Roberts, 283 F. Supp. 248, 257 (E.D. Ark.), aff'd, 393 U.S. 14 (1968); In re Grand Jury Subpoena to Central States, 225 F. Supp. 923, 925 (N.D. Ill. 1964). b. Assuming that the sort of "extraordinary circumstances" required by the Younger line of cases will justify equitable intervention in federal criminal investigations by United States Attorneys, it is nevertheless clear that no such extraordinary circumstances exist here. Respondents simply have not alleged or proved either the "great and immediate" irreparable injury or the "bad faith," "proven harassment," or flagrant and patent violation of express constitutional prohibitions or other extreme circumstances that are prerequisite to anticipatory judicial intervention in even coercive prosecutorial activity. See Younger v. Harris, 401 U.S. at 46, 53, 54; see also City of Los Angeles v.Lyons, 461 U.S. at 112. The alleged injuries in this case simply are not "great and immediate" within the meaning of the Younger line of cases. See Younger v. Harris, 401 U.S. at 46. As Judge Wallace noted in the dissent (App., infra, 29a), "the result of the investigation was to demonstrate that (the individual respondent) is a citizen, legally registered to vote, (and) there is little reason to believe that the government will again investigate (him) as a possible noncitizen voter." Thus, the individual respondent has no basis at all for seeking prospective relief. See City of Los Angeles v. Lyons, 461 U.S. at 105-106, 111; O'Shea v. Littleton, 414 U.S. at 499-504. We likewise doubt that the injuries alleged by the organizations are sufficient to provide them with standing, since they allege "chilling effects" from an investigation that never specifically focused on them or subjected them to a reasonable threat of prosecution. See Laird v. Tatum, 408 U.S. at 13-14; Boyle v. Landry, 401 U.S. 77, 80-81 (1971). But even if these "chilling effects" are sufficient to provide the organizations with standing, they are not "'irreparable" in the special legal sense of that term" (Younger v. Harris, 401 U.S. at 46). Rather, such "chilling effects" are reparable by the termination of the investigation (as in this case), or by the successful defense of any prosecution that results. See FTC v. Standard Oil Co., 449 U.S. at 244-245; Younger v. Harris, 401 U.S. at 46-47. Moreover, the governmental action challenged in this case was not conducted in bad faith, for the purpose of harassing respondents, or in flagrant disregard of respondents' rights. The undisputed facts show that Russoniello learned through public sources of allegations that various persons or organizations may have been conspiring fraudulently to register unqualified voters. It was certainly proper and perhaps obligatory that he institute some further inquiry. In doing so and in attempting to enforce the law against registration of noncitizens, Russoniello naturally focused on registrants' foreign birth, recent registration and request for bilingual voting materials. These three pieces of information were readily available on the voter registration form and were an obvious means of focusing the "investigation on persons who had registered at a time that illegal registrations may have been rampant and who, if they were witnesses to criminal activity, would be more likely to recollect details than would be long-registered noncitizen voters" (App., infra, 33a-34a). In short, Russoniello framed his investigation carefully to identify persons "who (might) have knowledge of serious criminal activity" (id. at 33a). Indeed, since Russoniello terminated the investigation when it failed to produce sufficient evidence to warrant a fuller grand jury investigation or criminal prosecution (id. at 45a), the record not only fails to establish prosecutorial misconduct for which there is "an extraordinarily pressing need for immediate federal equitable relief" (Kugler v. Helfant, 421 U.S. at 125), it shows that there is no continuing prosecutorial conduct at all. That the investigation in some sense "targeted" persons of Chinese-American and Hispanic-American origin does not justify anticipatory judicial intervention. The Equal Protection Clause does not require prosecutors to turn a blind eye to basic descriptive facts relevant to suspected criminal conduct. This Court has therefore recognized that law enforcement officials may consider group characteristics and statistical profiles, including the national origin or race of suspects and witnesses, in narrowing their investigations. See United States v. Brignoni-Ponce, 422 U.S. 873, 886-887 (1975); Wygant v. Jackson Board of Education, No. 84-1340 (May 19, 1986) (Stevens, J., dissenting), slip op. 2-4. Here, "recently-registered American communities were mostly likely to be able to furnish (Russoniello) with valuable information for the criminal investigation of a pattern of illegal voter registration he had reason to believe was occurring in those communities" (id. at 34a-35a). Thus, it was entirely proper for Russoniello to seek information from and concerning them. Even the opinion of the court below makes clear that the government officials involved in this investigation did not engage in the sort of bad faith, harassment, or other extreme behavior that arguably would establish the "extraordinary circumstances" necessary for enjoining a prosecutor's activities. /10/ The court below found that "the government had a compelling interest in preventing voter registration fraud" (App., infra, 19a), that there was no evidence that the government intended to deny or abridge respondents' right to vote (id. at 21a), that respondents' suit "raise(d) issues of first impression" (id. at 24a), and that "the government officials did not violate (any) 'clearly established' rights" by the conduct of their investigation (ibid.). In short, the court conceded that Russoniello's investigation was not conducted for purposes of harassment, did not violate any clearly established rights, and had not been shown to be devoid of legitimate investigatory purpose. Accordingly, the court should have held that the requisite "extraordinary circumstances" were absent and that neither injunctive nor declaratory relief could issue in this case. c. The contrary conclusion of the court below has unfortunate and far-reaching implications for the future relationship between federal prosecutors and the courts. Without any discussion of separation of powers constraints, the court has remanded with instructions that the district court reassess whether injunctive relief should issue and, in any event, hold a trial concerning whether Russoniello's investigation was conducted by the least restrictive means available, whether the investigation unduly burdened respondents' fundamental right to vote, and whether the government's interest in preventing voter registration fraud outweighed respondents' First Amendment interests. As noted earlier, this judgment invites litigants to use the courts to disrupt ongoing criminal investigations, precludes federal prosecutors from successfully defending even insubstantial claims (like those involved in this case) by motions for summary judgment, threatens to chill legitimate prosecutorial activity, and places the federal courts in the position of supervising activities that the Constitution places in the exclusive discretion of the Executive Branch. This Court's review is clearly warranted. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General DONALD B. AYER Deputy Solicitor General GLEN D. NAGER Assistant to the Solicitor General MICHAEL JAY SINGER JAY S. BYBEE Attorneys JANUARY 1987 /1/ Russoniello later learned that the Spanish translation of the voter registration form being used in these counties erroneously stated that a registrant "should" be, rather than "must" be, a United States citizen (App., infra, 79a). This fact confirmed Russoniello's suspicion that registration irregularities were most likely to occur among those who did not speak English (id. at 79a & n.1). /2/ Though foreign-born individuals are required to learn English before they may become naturalized citizens (see 8 U.S.C. 1423(1)), the federal law then in effect nevertheless required these particular counties to make available "voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots" (42 U.S.C. 1973aa-1a(c)), in Spanish as well as in English (App., infra, 3a). The County of San Francisco had to make the materials available in Chinese as well (ibid.). /3/ Judge Nelson dissented (App., infra, 69a-75a). While she agreed that "the organizations ha(d) standing" and that the "defendants (were) entitled to good faith immunity from damages" (id. at 69a), Judge Nelson disagreed "that (the individual respondent) lack(ed) standing," "that 'extraordinary circumstances' are required to enjoin an investigation that infringe(d) upon First Amendment rights * * *," or "that declaratory and injunctive relief should be judged under the same standards" (id. at 69a-70a). Judge Nelson argued that the individual respondent had standing because "(t)he burden which (he) allege(d) upon his exercise of the franchise -- that his request for a bilingual ballot triggered an investigation of him by the INS, the FBI, and the United States Attorney, and an interview with the local District Attorney at which he was to prove his citizenship -- (was) concrete" (id. at 71a), and because "the majority's suggestion that any stigma * * * was (the individual respondent's) own fault * * * ha(d) neither legal support nor a factual basis in the record" (id. at 70a-71a). She then argued that a district court always has equitable authority to enjoin an investigation that lacks a "reasonable basis" (id. at 71a-72a), and to issue declaratory relief concerning any unconstitutional action by a government official (id. at 72a-73a). Accordingly, Judge Nelson would have remanded the case with instructions that the district court enjoin the investigation "if it lacked a reasonable basis or was initiated in bad faith" (id. at 71a) and, in any event, that the district court declare "(t)he investigation * * * unconstitutional under the Equal Protection Clause" (id. at 75a). /4/ At the same time, the court determined that "(t)here (was) * * * no evidence that by investigating the individual appellants, the Government intended to deny or abridge their right to vote" (App., infra, 21a). Accordingly, it held that "the district court did not err in granting summary judgment on the Voting Rights Act claims" (id. at 22a). /5/ Judge Hug also dissented (App., infra, 36a-37a). Because the investigation had ended, he would have dismissed the claims for injunctive and declaratory relief as moot (id. at 37a). /6/ Judge Sneed added a separate word "to underscore Judge Wallace's dissent" (App., infra, 37a-38a). Judge Sneed emphasized that the fact "(t)hat Hispanics and Chinese make up th(e) pool (Russoniello investigated is) the consequence of geography, history, and the Voting Rights Act, not the discriminatory bias that the majority ascribes to the fact" (id. at 38a). Judge Sneed found that "(t)he classification employed by the United States Attorney was crafted to discover fraudulent voting. It was 'for all practical purposes' nothing more" (ibid.). /7/ The Court has similarly held that the federal courts may not "saddle a grand jury with minitrials and preliminary showings" concerning its investigation of possible criminal activity (United States v. Dionisio, 410 U.S. 1, 17 (1973)). The Constitution vests the grand jury with responsibility for determining "whether there is probable cause to believe a crime has been committed and (for) * * * protect(ing) * * * citizens against unfounded criminal prosecutions" (United States v. Calandra, 414 U.S. 338, 343 (1974)). To allow it to fulfill that function, the grand jury has "wide latitude to inquire into violations of criminal law" and to "determine alone the course of its inquiry" (id. at 343). Grand jurors "may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge" (United States v. Dionisio, 410 U.S. at 15), and "(a) sufficient basis for an indictment may only emerge at the end of the investigation when all the evidence has been received" (id. at 15-16). See also Costello v. United States, 350 U.S. 359, 362 (1956). Therefore, this Court has held that private citizens generally may not object to the competency, relevancy, or constitutionality of the evidence that a grand jury considers (see id. at 344-345, 353-355), challenge the basis on which a grand jury has initiated an investigation (see United States v. Dionisio, 410 U.S. at 13-17), or "set limits to the investigation that the grand jury may conduct" (Blair v. United States, 250 U.S. 273, 282 (1919)). The Court has held that private citizens may challenge only the coercive aspects of a grand jury's investigation (as that coercion applies to the persons affected). See United States v. Dionisio, 410 U.S. at 11-12, 16-18; Hale v. Henkel, 201 U.S. 43, 76 (1906); see also Branzburg v. Hayes, 408 U.S. at 707-708. Importantly, "'(t)he public prosecutor, in deciding whether a particular prosecution shall be instituted or followed up, performs much the same function as a grand jury'" (Butz v. Economou, 438 U.S. 478, 510 (1978), quoting Yaselli v. Goff, 12 F.2d 396, 404 (2d Cir. 1926) (citation omitted)). Like the grand jury, the prosecutor does not and cannot make decisions to prosecute "in a vacuum" (Forsyth v. Kleindienst, 599 F.2d 1203, 1215 (3d Cir. 1979), cert. denied, 453 U.S. 913 (1981)); rather, like the grand jury, the prosecutor ordinarily must conduct a preliminary investigation to determine whether charges should be filed. See United States v. Goodwin, 457 U.S. 368, 382 n.14 (1982); Cook v. Houston Post, 616 F.2d 791, 793 (5th Cir. 1980). Indeed, though "the grand jury may itself decide to investigate a matter or to seek certain evidence, it depends largely on the prosecutor's office to secure the evidence or witnesses it requires" (United States v. Sells Engineering, Inc., 463 U.S. 418, 430 (1983)). In obtaining this material for the grand jury, the prosecutor does not conduct "an adversary hearing in which the guilt or innocence of the accused is adjudicated" (United States v. Calandra, 414 U.S. at 343). Rather, like the grand jury, the prosecutor conducts "an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person" (id. at 343-344). Thus, in the absence of coercive activity, the prosecutor also "must be free to pursue (his) investigation unhindered by external influence or supervision * * *" (United States v. Dionisio, 410 U.S. at 17). /8/ Russoniello did suggest in his letter to the district attorneys that he would seriously "consider" prosecuting any group or individual who had deliberately conspired to register unqualified voters. See App., infra, 43a. But Russoniello made this suggestion without knowing the identities of respondents (or the identities of any other person whom he could prosecute). Thus, he did nothing more than make an impersonal statement that, if he discovered that federal law was being violated, he would enforce the federal law. /9/ The Court has held that federal court interference with state criminal prosecutions is generally inconsistent with notions of "comity" and "our Federalism" (Younger v. Harris, 401 U.S. at 44). In so holding, however, the Court has made clear that principles of comity and federalism only "reinforce()" the "underlying reason" for judicial restraint, to wit, the "basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief" (id. at 43, 44). /10/ As noted above, this Court has held that the "extraordinary circumstances" standard applies to prayers for declaratory as well as for injunctive relief. See Kugler v. Helfant, 421 U.S. at 123-124; Samuels v. Mackell, 401 U.S. 66, 72 (1971). See also Doran v. Salem Inn, Inc., 422 U.S. 922, 930-931 (1975). Thus, while it is true that there are some cases in which declaratory but not injunctive relief may be granted (see Steffel v. Thompson, 415 U.S. 452, 466-473 (1974)), this clearly is not such a case. As Judge Wallace noted in his original panel opinion, respondents are not "seeking a declaration that * * * (their) voter registration activities are lawful. Rather, they seek a declaration that the government's activities are unlawful. * * * In these circumstances, * * * (d)eclaratory relief * * * would raise the same concerns regarding interference with the activities of prosecuting officials (as the issuance of injunctive relief would raise)" (App., infra, 63a-64a). APPENDIX