MUN SU PARK 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 lawyerpark@hotmail.com J. CHRISTIAN ADAMS ELECTION LAW CENTER, PLLC 300 N. Washington St., Suite 405 Alexandria, VA 22314 Tel: (703) 963-8611 Fax: (703)-740-1773 adams@electionlawcenter.com MICHAEL E. ROSMAN CENTER FOR INDIVIDUAL RIGHTS 1233 20th St. NW, Suite 300 Washington, DC 20036 Tel: (202) 833-8400 Fax: (202) 833-8410 Rosman@cir-usa.org

UNITED STATES DISTRICT COURT DISTRICT OF GUAM -----------------------------------------------------------------------------------x Arnold Davis, on behalf of himself and all others similarly situated, Plaintiffs : v. : Guam, Guam Election Commission, et al., : Defendants. -----------------------------------------------------------------------------------x
COMES NOW the Plaintiff, Arnold Davis, and files this motion for class certification. Plaintiff hereby respectfully move this Court for an order, pursuant to Rule 23(c)(1) of the

: :

Case No. 11-CV-00035

Plaintiff's Motion for Class Certification

Federal Rules of Civil Procedure, certifying this action as a class action on behalf of all persons

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who are (or will be) registered to vote in Guam elections but not eligible to vote in the future Political Status Plebiscite ("the Plebiscite") provided for in 1 GCA 2110 solely because they are not "native inhabitants of Guam" as defined by 1 GCA 2102. Plaintiff seeks to maintain this class pursuant to Rule 23(b)(2), Fed. R. Civ. P., for purposes of determining whether defendants engaged in unlawful discrimination in registering or refusing to register voters for the Plebiscite, and whether defendants should be enjoined from engaging in such discrimination (or inducing such discrimination) in the future. In support of his motion for class certification, plaintiff provides the following points and authorities. Facts and Summary of Argument In the statute providing for the Plebiscite, the only people authorized to vote in it are "native inhabitants of Guam," defined in Guam law as those who were made U.S. citizens by the Organic Act of Guam in 1950, and their descendants. 1 GCA 2102, 2110. Plaintiff attempted to register for the Plebiscite but was unable to do so because he did not meet this definition of a "native inhabitant of Guam." Complaint 21. Plaintiff otherwise meets the eligibility criteria: he is over 18 and registered to vote in Guam elections. Complaint 20; 1 GCA 2110. The proposed class consists of all registered Guam voters who cannot register to vote in the Plebiscite solely because they are not "native inhabitants of Guam." The Rule 23(a) requirements of numerosity, commonality, and typicality are met unambiguously by this class, and plaintiff would more than adequately represent it. And because defendants have acted or refused to act on statutory grounds that apply not just generally, but exactly and uniformly, to all members of this class, and because the declaratory and injunctive relief plaintiff seeks is thus appropriate to the class as a whole, this is a paradigmatic instance of a class that should be certified pursuant to Rule 23(b)(2). Argument A lawsuit may be certified as a class action if it meets all the requirements of Rule 23(a),

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and one of the three requirements of Rule 23(b). The Court must perform a "rigorous analysis" to determine whether the party seeking certification has met these requirements. Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Here, the evidence is clear that the prerequisites of Rule 23(a) and Rule 23(b)(2) are met. I. The requirements of Rule23(a) are met by this action Rule 23(a), Fed. R. Civ. P., provides that: One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Each of these elements numerosity, commonality, typicality, and adequacy of representation is met here. A. Numerosity Rule 23(a)(1) requires that the class be so numerous that joinder of all members is impracticable. That is unquestionably true in the instant case, based on publicly-available information. According to the Guam Election Commission, there are 46,909 registered voters in Guam, http://gec.guam.gov/2012/01/15/696/, and so far 5,162 voters have registered to vote in the Plebiscite, http://gec.guam.gov/2012/01/18/5162-registered-native-inhabitants-of-guam/. Of the 41,747 registered Guam voters who have not registered for the Plebiscite, it seems a virtual certainty that many, like plaintiff, are ineligible to do so, and therefore are members of the class. In part, this is because large numbers of U.S. citizens residing in Guam were born in other portions of the U.S. or in foreign countries. According to the U.S. Census Bureau, in 2000 (the

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last year for which such data can readily be ascertained) there were 7,284 naturalized American citizens in Guam who had entered Guam between 1990 and 2000, and 24,449 native-born U.S. citizens who were not born in Guam. Also, in 2000 there were 14, 391 naturalized U.S. citizens in Guam who had entered Guam before 1990. http://www.census.gov/prod/cen2000/island/GUAMprofile.pdf. On any reasonable assumption of the rates of voter registration among these groups, registered Guamanian voters who are not eligible to register for the Plebiscite number in the thousands. Indeed, if just one-tenth of the 21,675 naturalized citizens in Guam in 2000 are registered to vote in Guam today, there are over 2,000 registered Guamanian voters who are immigrants to Guam from foreign countries, and therefore highly unlikely to meet the statutory definition of "native inhabitant." Courts routinely certify much smaller classes than this. See, e.g., Jordan v. Los Angeles County, 669 F.2d 1311, 1319 (9th Cir.1982) (willing to find numerosity for classes with thirty-nine, sixty-four, and seventy-one people), vacated on other grounds, 459 U.S. 810 (1982); Orantes-Hernandez v. Smith, 541 F. Supp. 351, 370 (D.C. Cal. 1982) ("Where the exact size of the class is unknown but general knowledge and common sense indicate that it is large, the numerosity requirement is satisfied."); Norwood v. Raytheon Co., 237 F.R.D. 581, 586 -587 (W.D. Tex. 2006) (holding numerosity requirement met where plaintiffs, based on publicly available information, estimated proposed class to number in the hundreds). Joinder is impracticable, moreover, when it would be difficult or inconvenient, even if it would not be literally impossible. Here, joinder is far more impracticable than in many cases, ones with relatively small classes, where courts have nonetheless certified those classes. See Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 273 (10th Cir. 1977) (upholding certification of a class of forty-one to forty-six members); Arkansas Educ. Assn v. Bd. of Educ., 446 F.2d 763, 765-66 (8th Cir. 1971) (upholding certification of a class of twenty members). Plaintiffs need not establish the exact number of people in the class, only that it is sufficiently

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numerous. Lynch v. Rank, 604 F. Supp. 30, 36 (C.D. Cal. 1984), aff'd, 747 F.2d 528 (9th Cir. 1984); 7A Wright, Miller & Kane, Federal Practice and Procedure 1762. Joinder is all the more impracticable here because the proposed class includes people who will register to vote in the future and whose identity is unknown. See Pederson v. Louisiana State University, 213 F.3d 858, 868 n.11 (5th Cir. 2000) (holding that class consisting of potential female varsity soccer and softball players met the numerosity requirement; the fact that the class includes unknown, unnamed future members also weighs in favor of certification); Shariff v. Goord, 235 F.R.D. 563, 570 (W.D.N.Y. 2006) (finding numerosity met by class represented by a wheelchair-bound inmate claiming he was injured by the manner in which the New York State Department of Correctional services transported him and seeking injunctive relief; the Court finds that plaintiff's allegations of approximately 100 potential class members, as well as the effect on future wheelchair-bound inmates, meets the numerosity requirement); National Ass'n of Radiation Survivors v. Walters, 111 F.R.D. 595, 599 (N.D. Cal. 1986) ([W]here the class includes unnamed, unknown future members, joinder of such unknown individuals is impracticable and the numerosity requirement is therefore met, regardless of class size.") (internal quotation marks omitted); International Molders and Allied Workers Local Union No. 164 v. Nelson, 102 F.R.D. 457, 461 (N.D. Cal. 1983) (in case challenging legality of immigration raids on workplaces to search for undocumented aliens, the proposed class includes unknown and unnamed future members, making a conclusion that joinder is impracticable particularly compelling). B. Commonality Commonality requires only that there must be a question of law or fact common to the class. The questions of law in this case are whether the restriction of registration to vote in the Plebiscite to "native inhabitants" violates various laws, and whether the Court should grant declaratory or injunctive relief accordingly, and these questions are at issue in the same way for

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each class member. See Bouman v. Block, 940 F.2d 1211, 1232 (9th Cir. 1991) (holding that class met commonality requirement where plaintiff is attacking defendants discriminatory practices against females, and this is not just as it applied to plaintiff only, since allegations identif[y] a common legal issue, discrimination against women, and a common factual problem, discrimination as applied in the Sheriffs Department); Protectmarriage.Com v. Bowen, 262 F.R.D. 504, 507 (E.D. Cal. 2009) (holding commonality requirement met by proposed class of donors who had contributed over $10,000 to committees supporting amendment to California Constitution, in action challenging California's statutory requirement that committees disclose names and other personal information of their contributors, because the case presented common legal issue of whether plaintiff class members were required to comply with statute's requirements and thus the "legal arguments necessary to prosecute the instant claims are nearly identical as to all class members"). C. Typicality The Ninth Circuit has found typicality if the requisite claims share a 'common issue of law or fact ... and are sufficiently parallel to insure a vigorous and full presentation of all claims for relief. Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp., 917 F.2d 1171, 1175 (9th Cir. 1990) (citations omitted), amended, 937 F.2d 465 (9th Cir. 1991). Here, the issues of fact namely, whether defendants allow registered Guam voters who are not "native inhabitants" to register to vote in the Plebiscite and the legal issues namely, the lawfulness of this policy of exclusion are identical for each class member. See Protectmarriage.com, 262 F.R.D. at 507508 (holding typicality met where plaintiffs presented the same claims that could be brought by any other class member). Also, where the central issue is discrimination based on a shared class attribute (for example, race or sex) and the discrimination is manifested in the same fashion, class certification would be appropriate even if there were factual differences in each claim. Rossini v.

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Ogilvy & Mather, Inc., 798 F.2d 590, 598 (2d Cir. 1986) (holding class representatives claims were typical, even though she only experienced discrimination in transfers, and action challenged other forms of discrimination, such as in promotions and training, since many of the acts of discrimination were made by the same managers) (citing Brown v. Eckerd Drugs, Inc., 564 F. Supp. 1440, 1446 (W.D.N.C. 1983) (finding commonality where discrimination in individual demotion and discharge claims was manifested in the same fashion as discrimination in class promotion and transfer claims)). Here, each member of the class is excluded by defendants' policies from registering to vote in the Plebiscite based on race or ancestry. D. Adequacy of representation In the Ninth Circuit, "[r]esolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). Here, there are no apparent conflicts of interest among plaintiff and the class members; all have been denied their right to vote in a matter affecting their future by defendants' policies. Also, plaintiff has shown himself willing and able to prosecute this action on behalf of all voters in his position. He has retained attorneys with experience in the areas of civil rights and voting rights law to bring the present action. Statements of J. Christian Adams and Michael E. Rosman. See Protectmarriage.com, 262 F.R.D. at 508 ("This Court is entirely satisfied that the Plaintiff classes are adequately represented by both the named Plaintiffs and their counsel. One need only conduct a cursory overview of the law governing this substance of this case to determine the breadth and depth of the experience Plaintiffs' counsel brings to this litigation.").

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2.

The requirements of Rule 23(b)(2) are met here Rule 23(b)(2) provides that a class action may be maintained if the requirements of Rule

23(a) are met and "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Here, defendants' policy of excluding non-"native inhabitants" from registering to vote in the Plebiscite applies identically to all members of the class, and final injunctive and declaratory relief is thus appropriate for the class as a whole. See Griffin v. Burns, 570 F.2d 1065, 1074 (1st Cir. 1978) (finding an action for an injunction that a new primary be held to remedy the retroactive exclusion of absentee or shut-in ballots "easily [lent] itself" to Rule 23(b)(2) certification, because "every member of the plaintiff class had his vote quashed simply because it was cast by absentee or shut-in ballot"). Indeed, where a complaint alleges a broad policy of discrimination based upon a specific characteristic, final injunctive or declaratory relief with respect to the class as a whole is especially appropriate, and the class may be certified under Rule 23(b)(2). Bauman v. U.S. Dist. Ct., 557 F.2d 650, 659 (9th Cir. 1975) ([C]lass actions are generally appropriate in [racial] discrimination cases). For this reason, this case presents a paradigmatic example of a lawsuit appropriate for (b)(2) certification. See Probe v. State Teachers Retirement System, 780 F.2d 776, 780 (9th Cir. 1986) (holding claim that use of sex-based mortality tables to determine retirement benefits properly certified under (b)(2)); Robinson v. Metro-North Commuter Railroad Co., 267 F.3d 147, 169 (2d Cir. 2001) (Title VII discrimination claims seeking both injunctive and equitable monetary relief are routinely certified as (b)(2) classes); Smith v. University of Washington Law School, 2 F. Supp. 2d 1324, 1328, 1340-45 (W.D. Wa. 1998) (certifying challenge to university affirmative action plan under (b)(2)); Grutter v. Bollinger, 137 F. Supp. 2d 821, 824 (E.D. Mich. 2001) (same); Gratz v. Bollinger, 122 F. Supp. 2d 811, 814 (E.D. Mich. 2000) (same); Majeske v. City of Chicago, 740 F. Supp. 1350, 1356 (N.D. Ill. 1990) (certifying

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under (b)(2) class of white Chicago police officers where the allegation was that the scoring system for detectives promotional exam favored black and Hispanic test takers). Conclusion For these reasons, plaintiff's motion for class certification should be granted. Dated: February 27, 2012. Respectfully submitted,

/s/ ____________________ MUN SU PARK 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 lawyerpark@hotmail.com
J. CHRISTIAN ADAMS ELECTION LAW CENTER, PLLC 300 N. Washington St., Suite 405 Alexandria, VA 22314 Tel: (703) 963-8611 Fax: (703)-740-1773 adams@electionlawcenter.com MICHAEL E. ROSMAN CENTER FOR INDIVIDUAL RIGHTS 1233 20th St. NW, Suite 300 Washington, DC 20036 Tel: (202) 833-8400 Fax: (202) 833-8410 Rosman@cir-usa.org

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CERTIFICATE OF SERVICE I hereby certify that on February 27, 2012, I served a copy of the forgoing Motion for Class Certification on counsel for the Defendants by providing a copy to Robert M. Weinberg, Assistant Attorney General, through the Electronic Case Filing System, which provides an electronic copy of the same to rweinberg@guamattorneygeneral.com, and also served the same on Julian Aguon by first class mail to: Julian James Aguon The Law Office of Julian Aguon 414 W. Soledad Avenue GCIG Bldg., Suite 500H Hagatna, GU 96910

/s/ _______________ J. Christian Adams Counsel for plaintiff

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