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RICHARD L HOLCOMB (HI Bar No. 9177) BRIAN BRAZIER (HI Bar No. 9177) (Of Counsel) Holcomb Law, A Limited Liability Law Corporation 1136 Union Mall, Suite 808 Honolulu, HI 96813 Telephone: (808) 545-4040 Facsimile: (808) 356-1954 Email: rholcomblaw@live.com Of Counsel; Brian Brazier ALAN BECK (HI Bar No. 9145) Attorney at Law 4780 Governor Drive San Diego, California 92122 Telephone: (619) 971-0414 Email: ngord2000@yahoo.com Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Hawaii Defense Foundation, Christopher Baker, and Derek Scammon vs. Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 12-00469JMS-RLP PLAINTIFFS RESPONSE TO DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS [DOC. 36]; EXHIBIT ONE; DECLARATION OF CHRISTOPHER BAKER; CERTIFICATE OF SERVICE HEARING: Date: January 21, 2013 Time: 9:00 a.m. Judge: Honorable J. Michael Seabright

City and County of Honolulu; Andrew Lum, in his personal and official capacity; John Does 1-10 in their personal and official capacities. Defendants. _________________________

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TABLE OF CONTENTS CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Armster v. U.S. Dist. Court, 806 F.2d 1347 (9th Cir. 1986) . . . 13 Barnes v. Healy, 980 F.2d 572 (9th Cir. 1992) . . . . . . . . . . . . . 7, 15-16, 17 Canez v. Guerrero, 707 F.2d 443 (9th Cir.1983) . . . . . . . . . . . 14 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) . . . . . . . . . . . 9, 10, 11-12 City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dan Caputo Co. v. Russian River County Sanitation District, 749 F.2d 571 (9th Cir.1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 20

5, 16-17

14

Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) . . . . . . . . . . . 14-15 Enrico's, Inc. v. Rice, 730 F.2d 1250 (9th Cir.1984) . . . . . . . . . 14 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 n. 3, 15 F.T.C. v. Affordable Media, 179 F.3d 1228 (9th Cir. 1999) . . . . 5-6 Church of Scientology Flag Service Organization, Inc. v. City of Clearwater, 2 F.3d 1514 (11th Cir.1993) . . . . . . . . . 5 City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) . 5 E.E.O.C. v. KarenKim, Inc., 698 F.3d 92 (2d Cir. 2012) . . . . . . 16 F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009) . . . . 16

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F.T.C. v. Affordable Media, 179 F.3d 1228 (9th Cir. 1999) . . . . 6-7 Garcia v. Lawn, 805 F.2d 1400 (9th Cir. 1986) . . . . . . . . . . . . . 13-14 Maine Human Rights Comm'n v. City of Auburn, 425 A.2d 990 (Me. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20 Matter of Combined Metals Reduction Co., 557 F.2d 179 (9th Cir.1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 N.A.A.C.P. v. City of Evergreen, Ala., 693 F.2d 1367 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18 Philips v. Pennsylvania Higher Education Assistance Agency, 657 F.2d 554 (3rd Cir.1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007) . . . . . . . . . . . . 13 Rosemere Neighborhood Ass'n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Solomon v. City of Gainesville, 763 F.2d 1212 (11th Cir.1985) . 5 Southern Oregon Barter Fair v. Jackson County, 372 F.3d 1128 (9th Cir.2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Swift & Co. v. United States, 276 U.S. 311 (1928) . . . . . . . . . . . 15 United States v. Oregon State Medical Society, 343 U.S. 326 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. W. T. Grant Co., 345 U.S. 629 (1953) . . . . . . . 5, 7, 9, 15, 16

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PLAINTIFFS RESPONSE TO DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS [DOC. 36] Plaintiffs concede to the dismissal of John Doe Defendants. Because the Defendants admitted that the City had delegated responsibility for administration of the HPD Facebook page to Defendant Lum, additional discovery is not required to identify other culprits. Also, Plaintiffs concede to the dismissal of Defendant Lum in his official capacity. It is unclear what the Defendants stands to gain from such dismissals. But, Plaintiffs agree generally that Defendant Lum, in his official capacity, is in effect the City. Plaintiffs do object to the remainder of the Defendants request, i.e., an outright dismissal of any claims requesting injunctive relief. The Citys argument is essentially that this case is moot. Yet, it was only because this Court compelled the City to correct its illegal conduct at the status conference held August 22, 2012,1 that Defendants, to counsels knowledge,

Specifically, the day after the Complaint was filed, this Court held a status conference. The Court informed the City that if the allegations in the Complaint were true, this Court would have no choice but to issue a Temporary Restraining Order as requested by the Plaintiffs. Thus, this Court admonished the City to remedy the issue. While counsel cannot remember the exact language the Court chose, it appears that a transcript of that status conference was preserved and counsel will order the transcript. Nevertheless, after some discussion between the parties, including the Citys initial inclination to remove the HPD Facebook page altogether, the City decided that no posts would be removed until such time as a policy
*Footnote continued

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first refrained from removing posts from the HPD Facebook page. And, the policy that was agreed upon by the parties in lieu of formal injunctive relief was not adopted until some months later. It clearly took the authority of this Court to effectuate this change. Indeed, the day that the Complaint in this case was filed, the allegations of this Complaint appeared on the local evening news. Approximately twenty minutes later, Defendants (presumably Defendant Lum) posted the following on the HPD Facebook page: Aloha HPD Facebook users. We hope the information this site provides is useful and has value to you as members of this community. The intent of this site was to utilize current technology to build law enforecement partnerships with you toward making Honolulu the safest place to live, work, and play. Sharing your experiences with us, either good or bad, is encouraged. However, misrepresentations calculated to harm the reputation of the HPD, or others, are considered defamatory and will be deleted as a violation of the posting guidelines. We appreciate the opportunities Facebook technology allows us in sharing information with you. Aloha. This posting is attached as Exhibit One. In other words, as of August 21, 2013, following the filing of the Complaint, it was the intent of the City s

governing the removal of speech from the HPD Facebook page was negotiated with the assistance of the ACLU and approved by the Plaintiffs.

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delegate, Defendant Lum, to continue to remove any and all posts criticizing the HPD. That post was unsurprisingly removed following the Status

Conference of August 22, 2013. Moreover, it was only following the status conference and the Citys resulting decision to decline to remove any interim postings (during the time the policy was being negotiated) that the ban was lifted, allowing Mr. Baker and Mr. Scammon to again participate in the public forum, i.e., the HPD Facebook page. The Citys current contention that Plaintiffs had several of their postings removed and were temporarily unable to post on HPDs Facebook Page . . . harms [that] ended before they filed the instant action is simply untrue. [Doc. 36-1, p. 6] It is unclear to the undersigned how the City interprets the statements in the Complaint and/or the Concise Statement of Facts [Doc. 35] that Mr. Scammon and Mr. Baker were banned for some time prior to the filing of the Complaint as some admission that the ban was lifted before the filing of the Complaint.2 [See

Paragraph 8 of Doc. 35 states: HPD Banned Plaintiff Christopher Baker from Posting on its facebook page for a period of time prior to the filing of Plaintiffs Complaint. Paragraph 10 states the same for Plaintiff Scammon. Paragraphs 20 and 22 of the Complaint [Doc. 1] state essentially the same. And, the City admitted that Mr. Baker was banned from participating in the forum. Doc. 35-3, pp. 7-8 (Request for Admission Number 15). The City
*Footnote continued

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Doc. 36, p. 6]

Such was certainly not the case.

See Declaration of

Christopher Baker, attached. Indeed, the lifting of the ban was specifically requested in both the Motion for Temporary Restraining Order [Doc. 6, p. 2] and the Motion for Preliminary Injunction. [Doc. 7, p. 2; Doc. 7-1, p. 15] Further, in order to resolve the preliminary injunction, the parties, with the assistance of the ACLU, negotiated a policy to govern the removal of Facebook posts. That is why the Court deemed the Preliminary

Injunction Motion moot solely because the parties agreed to implementation of the policy in lieu of burdening the Court with deciding the extent of preliminary injunctive relief to which Plaintiffs were entitled. [Compare Doc. 36-1, p. 6] This has absolutely no effect on the standing, mootness, or merits of the controversy before this Court.3 It is longstanding and undeniable that the instant lawsuit presents a case in controversy, Plaintiffs have standing, and the claims are not moot.

admitted the same as to Plaintiff Scammon. Doc. 35, p. 11 (Request for Admission Number 23).
3

Notably, even if this Court denied the Motion for Preliminary Injunction on the merits, which it certainly did not, it would make no difference whatsoever. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 192-93 (2000) (Denial of injunctive relief does not necessarily mean that the district court has concluded there is no prospect of future violations for civil penalties to deter.).

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The Citys argument is essentially that its voluntary cessation of this illegal activity (despite this cessation clearly being compelled by this Court as evidenced by the record of this case and the HPD Facebook post of August 21, 2012) somehow renders Plaintiffs claims moot. This argument has been squarely rejected by our appellate courts for decades: Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. A controversy may remain to be settled in such circumstances, a dispute over the legality of the challenged practices. The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right, The courts have rightly refused to grant defendants such a powerful weapon against public law enforcement. United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953) (citations omitted); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982) (It is well settled that a defendants voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.); Philips v. Pennsylvania Higher Education Assistance Agency, 657 F.2d 554, 56970 (3rd Cir.1981), cert. denied, 455 U.S. 924 (1982); Solomon v. City of Gainesville, 763 F.2d 1212 (11th Cir.1985); Church of Scientology Flag Service Organization, Inc. v. City of Clearwater, 2 F.3d 1514 (11th Cir.1993).
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Thus, the Ninth Circuit has rightfully observed that while the actions of a victim may render injunctive relief moot, it is much more difficult for a perpetrator to render injunctive relief moot: The Andersons contend that [v]oluntary cessation of an unlawful course of conduct precludes the issuance of an injunction if there is no cognizable danger of recurrent violations. Appellants' Opening Brief at 28. Contrary to the Andersons' assertion, however, it is actually well-settled that an action for an injunction does not become moot merely because the conduct complained of was terminated, if there is a possibility of recurrence, since otherwise the defendant's would be free to return to [their] old ways. FTC v. American Standard Credit Systems, Inc. 874 F.Supp. 1080, 1087 (C.D.Cal.1994) (quoting Allee v. Medrano, 416 U.S. 802, 811, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974)) (internal citations omitted) (emphasis added). In part, the Andersons' misunderstanding may involve a misunderstanding of the difference between the effect of the perpetrator's conduct, as compared to the victim's conduct, on the need for injunctive relief. The difference is that the victim can moot her need for injunctive relief by her own conduct, but the alleged wrongdoer cannot moot the need for injunctive relief as easily. This confusion becomes apparent from the cases upon which the Andersons rely. If an employee leaves the employ of an employer, she cannot obtain injunctive relief to prevent her former employer from engaging in future retaliation in the workplace. See Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1502 (D.C.Cir.1995). It would obviously be a different case if an employer claimed that an injunction to prevent future retaliation against current employees was no longer necessary because the employer had stopped retaliating against its employees in the workplace. It is possible, of course, that a defendant's conduct can moot the need for injunctive relief, but the test for mootness in cases such as this is a stringent one. United States v. Concentrated
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Phosphate Export Ass'n., Inc., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968). The reason that the defendant's conduct, in choosing to voluntarily cease some wrongdoing, is unlikely to moot the need for injunctive relief is that the defendant could simply begin the wrongful activity again: Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave [t]he defendant ... free to return to his old ways. Id. (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). F.T.C. v. Affordable Media, 179 F.3d 1228, 1237-38 (9th Cir. 1999). In fact, voluntary cessation of illegal conduct only renders a claim moot if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated. W.T. Grant Co., 345 U.S. at 633; Barnes v. Healy, 980 F.2d 572 at 580 (9th Cir. 1992) (citations omitted). The defendants burden is a heavy one, Id., and one that the Defendants in this case have not even attempted to satisfy in its motion. The Ninth Circuit has adopted the following formulation of the law in this regard: Voluntary cessation of an illegal course of conduct does not render moot a challenge to that course of conduct unless (1) there is no reasonable expectation that the wrong will be repeated, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Barnes, 980 F.2d at 580 (citations omitted) (emphases added). Defendants could not show under the circumstances of this case that interim relief or events have completely and irrevocably eradicated the
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effects of the alleged violation. Defendants are simply requesting to be left to their old ways. Defendant Lum, who expressed his intent to continue deletions of postings and/or banning of posters even after the filing of this lawsuit, apparently still administers the HPD Facebook page. There is no evidence of so much as a reprimand for his conduct in this case. Moreover, the policy that was negotiated to dispose of the Preliminary Injunction was simply a Memorandum sent to All Departments outlining the types of comments that may be removed and directing the agency to review the proposed deletion with the Department of Corporation Counsel. There is no

indication of a formal adoption of this policy by City Council or any other formal administrative promulgation procedures. Thus, Defendants are free to simply continue to remove posts and ban participation in the forum once this lawsuit is resolved. And, most importantly, the harm suffered continues even today as Plaintiffs deleted posts were never restored as specifically requested in the Motion for Preliminary Injunction, [Docs. 7, 7-1] which, along with the lifting of the ban represent the crux of this lawsuit. The effects of the illegal conduct simply have not been completely or irrevocably eradicated and there is a clear risk of the harm continuing and being

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repeated.

Clearly, this Court should not deem Plaintiffs cl aims for

injunctive relief moot as asserted by the Defendants. The City relies solely on two cases for its assertion of mootness. First, the City relies on City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). There, a police officer had allegedly choked Mr. Lyons following a traffic stop. Id. at 97-98. Mr. Lyons sought broad injunctive relief against the use of chokeholds by all LAPD officers except in very limited circumstances. Id. at 98. During litigation, five more deaths occurred as a result of LAPD chokeholds. Id. at 100. And, the Board of Police

Commissioners instated a six month moratorium on the use of chokeholds. Id. The United States Supreme Court clearly found (agreeing with the City Defendant in that case) that a mere moratorium on potentially unconstitutional behavior did not render the claims moot: [w] e agree with the City that the case is not moot, since the moratorium by its terms is not permanent. Intervening events have not irrevocably eradicated the effects of the alleged violation. Lyons, 461 U.S. at 101 (citations omitted).

However, the Court found there was no case or controversy because there was no indication that Mr. Lyons would ever again be stopped by a police officer who would illegally choke him:
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In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner. Id. at 105-06. In contrast, the facts of this case are that the Defendants were at the very least informally compelled by this Court to correct the wrongdoing only after the filing of this lawsuit. That fact, alone, cuts heavily against the Defendants instant argument. It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentence and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption. United States v. Oregon State Medical Society, 343 U.S. 326, 333 (1952). To accept such protestation and cessation at face value free to return to his [or her] old ways. W.T. Grant, supra, 345 U.S. at 632. Nevertheless, following this Courts admonishment of August 22, 2012, the City has apparently sent a memorandum to various City Departments requesting compliance with the negotiated policies, citing potential legal exposure as the reason for the request. The same offending administrator (i.e., Defendant Lum), who expressed his intent to continue to
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engage in the illegal conduct even after the filing of this lawsuit, is believed to continue to administer the HPD Facebook page, with no known corrective action taken against him. And, there is nothing requiring continued

compliance with the policy. Thus, if Plaintiffs post on City Facebook pages, as they intend to do, they are subject to unconstitutional action by the same actors. Thus, the risk of such action occurring after the resolution of this lawsuit remains very real. Moreover (and again), not only is future harm foreseeable, but it is continuing today. Plaintiffs posts have not been

restored. This alone distinguishes this case from those relied upon by the Defendants. The Lyons Court also discussed the second case relied upon by the City as follows: In O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), we dealt with a case brought by a class of plaintiffs claiming that they had been subjected to discriminatory enforcement of the criminal law. Among other things, a county magistrate and judge were accused of discriminatory conduct in various respects, such as sentencing members of plaintiff's class more harshly than other defendants. The Court of Appeals reversed the dismissal of the suit by the District Court, ruling that if the allegations were proved, an appropriate injunction could be entered. We reversed for failure of the complaint to allege a case or controversy. Although it was claimed in that case that particular members of the plaintiff class had actually suffered from the alleged unconstitutional practices, we observed that [p]ast exposure to illegal conduct does not in itself show a present
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case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects. Past wrongs were evidence bearing on whether there is a real and immediate threat of repeated injury. But the prospect of future injury rested on the likelihood that [plaintiffs] will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners. The most that could be said for plaintiffs' standing was that if [plaintiffs] proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed. We could not find a case or controversy in those circumstances: the threat to the plaintiffs was not sufficiently real and immediate to show an existing controversy simply because they anticipate violating lawful criminal statutes and being tried for their offenses.... It was to be assumed that [plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners. Lyons, 461 U.S. at 102-03. In other words, because those Plaintiffs were expected to comply with valid criminal law, they should never again be subject to the discrimination claimed in their lawsuit. In contrast, in this case, Plaintiff Baker has attached a Declaration evidencing his intent to engage in future conduct that epitomizes legal and, indeed, closely protected conduct in American society i.e., political dissent. Declaration of Christopher Baker. Clearly, unlike the Plaintiffs in OShea, supra., Mr. Baker is entitled to engage in the desired conduct. Moreover, unlike the Plaintiffs in Lyons, supra., the likelihood of encounters
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with the same offending actors is not only likely but inevitable. Notably, such stated intent is all that the Ninth Circuit requires before flatly rejecting a Defendants claim that voluntary cessation renders claims for injunctive relief moot. Rosemere Neighborhood Ass'n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169, 1174 (9th Cir. 2009) (the burden is not on [Plaintiff] to show it will file another complaint. The burden is on the [Defendant] to show that [Plaintiff] will not do so. The Defendants attempt to reverse this burden is insufficient to show mootness. . . . More importantly, when there is an argument about whether a plaintiff will again encounter a challenged activity, this court has required little more than what [Plaintiff] has already supplied: a stated intention to resume the actions that led to the litig ation.); see also Porter v. Bowen, 496 F.3d 1009, 1014-15 (9th Cir. 2007); Southern Oregon Barter Fair v. Jackson County, 372 F.3d 1128 (9th Cir.2004). On the other hand, a mere stated intention that this situation will not recur . . . [is not] sufficient to deprive this Court of its constitutional power to adjudicate this case. Armster v. U.S. Dist. Court, 806 F.2d 1347, 1359 (9th Cir. 1986). Indeed, it appears that the Ninth Circuits willingness to hold that a lawsuit is moot due to cessation of conduct is limited to circumstances where the action which rendered the lawsuit moot was irreversible, and no
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effective relief was available. Garcia v. Lawn, 805 F.2d 1400, 1403-04 (9th Cir. 1986) (finding that a case where a DEA Agent claimed his transfer was illegal retaliation to past litigation was not moot despite the DEA Agent having been terminated since the commencement of the lawsuit) (distinguishing Dan Caputo Co. v. Russian River County Sanitation District, 749 F.2d 571, 574 (9th Cir.1984) (action to enjoin performance of contract mooted by virtue of the completion of the contract); Enrico's, Inc. v. Rice, 730 F.2d 1250, 1254 (9th Cir.1984) (issue on appeal mooted by virtue of intervening decision by a California state court interpreting California state law); Canez v. Guerrero, 707 F.2d 443, 446 (9th Cir.1983) (action as to procedures used in a union election mooted because the election had occurred and the complainants had been victorious); Matter of Combined Metals Reduction Co., 557 F.2d 179, 192 (9th Cir.1977) (action as to the appropriate disposition of property of a bankrupt company mooted because the sale and lease of the property in question had been completed pursuant to a valid order of the district court)). In sum, absent some extraordinary showing by the Defendants, [o]nce a defendant has engaged in conduct the plaintiff contends is unlawful and the courts have devoted resources to determining the dispute, there is Article III jurisdiction to decide the case as long as the parties [do not] plainly lack a continuing interest.... Demery v.
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Arpaio, 378 F.3d 1020, 1026 (9th Cir. 2004) (quoting Friends of the Earth, Inc, 528 U.S. at 192)). Defendants Motion should be denied. Not only are the claims clearly viable at present, but the injunctive relief should be granted via Plaintiffs pending Motion for Summary Judgment or upon finding of facts at trial. The purpose of an injunction deals primarily, not with past violations, but with threatened future ones; and that an injunction may issue to prevent future wrong, although no right has yet been violated. Swift & Co. v. United States, 276 U.S. 311, 326 (1928). Accordingly, [a]long with its power to hear the case, the court's power to grant injunctive relief survives discontinuance of the illegal conduct. W.T. Grant Co., 345 U.S. at 633. However, Plaintiffs must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive. Id. (emphasis added). Here, there is not merely some cognizable danger of recurrent violation, the violation has continued throughout this litigation. Specifically, Plaintiffs protected speech has remained deleted from the HPD Facebook page with no known efforts by the Defendants to restore the protected speech. Moreover, Defendant Lum apparently continues to administer the
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page and a mere memorandum, with no known formal adoption by City Council or otherwise, requests compliance with the policy to which the parties agreed to satisfy the requested preliminary injunctive relief. Clearly, a denial of Plaintiffs requested injunctive relief leaves Defendants free to return to his [or its] old ways. W.T. Grant Co., 345 U.S. at 633. Such injunctions have been issued by a number of courts, including: The Second Circuit found an abuse of discretion in denying an injunction in a sexual harassment case despite the termination of the lone sexual harasser where the offender was a store manager in a relationship with the owner of the store. As in this case, nothing prevented the Store owner from rehiring the offender. E.E.O.C. v. KarenKim, Inc., 698 F.3d 92, 100-01 (2d Cir. 2012); The Tenth Circuit upheld an issued injunction where a companys telephone record search activities were challenged by the Federal Trade Commission. Despite the company having ceased offering telephone records before litigation commenced and having expressed a willingness to disgorge profits gained by the challenged acts, the company remained in the information brokerage business [and, therefore] had the capacity to engage in similar unfair acts or practices in the future. F.T.C. v. Accusearch Inc., 570 F.3d 1187, 1201-02 (10th Cir. 2009); The United States Supreme Court refused to overturn injunctive relief issued by the lower court despite the Defendants claims of cessation, finding: It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power. In this case
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the city's repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court's judgment were vacated. Aladdin's Castle, 455 U.S. at 289; and In a case where injunctive relief was granted to one class but not another, the Ninth Circuit specifically held that the issuance of such injunctive relief was not moot despite the Defendants voluntary agreement to comply with the terms of the injunction in regards to all classes. Although we commend Healy for his willingness to comply voluntarily with the preliminary injunction, we do not regard this issue as moot. Absent resolution of the court's conflicting orders, DSS might find it convenient at any time to dispense with notice to nonAFDC custodial parents. The entire class is entitled to the protection of an enforceable order to ensure that past due process violations will not be repeated. Barnes, 980 F.2d at 580. This case presents the precise issue as that in Barnes, supra. Specifically, the City might at any time find it convenient to dispense with the requirements of the memorandum and dispense with any or all constitutional safeguards. This would result in the past First Amendment violations being repeated. And, unless an aggrieved member of the public, willing to bear the burden of federal litigation, the wrong might never be resolved. Interestingly, albeit in racial discrimination cases rather than discrimination based on political viewpoints as presented by this case, courts have been even more willing to issue injunctive relief despite cessation and promises of future good behavior. In fact, courts have found a self-imposed duty to right the wrongs of past discrimination. For example, in N.A.A.C.P.
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v. City of Evergreen, Ala., 693 F.2d 1367, 1370-71 (11th Cir. 1982), the Eleventh Circuit based its decision to fashion equitable injunctive relief entirely on the history of Evergreens discrimination against African Americans in supervisory positions: But in cases presenting abundant evidence of consistent past discrimination, injunctive relief is mandatory absent clear and convincing proof that there is no reasonable probability of further noncompliance with the law. James v. Stockham Valves & Fittings Co., 559 F.2d 310, 354 (5th Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). Although the court found that discrimination no longer exists, the power to issue an injunction survives discontinuance of the illegal conduct sought to be enjoined. W.T. Grant, supra, 345 U.S. at 633, 73 S.Ct. at 897. The district judge clearly erred in stating that [i]t is insignificant whether this change is due to the filing of the EEOC charge and this suit. Courts should keep in mind the oft-repeated observation that reform timed to anticipate or blunt the force of a lawsuit offer[s] insufficient assurance that the practice sought to be enjoined will not be repeated. James v. Stockham Valves, supra, 559 F.2d at 35455. Moreover, even absent the threat of future discriminatory behavior, the courts have a duty to correct and eliminate the present effects of past discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975); Morrow v. Crisler, 491 F.2d 1053, 1056 (5th Cir.) (en banc), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974); NAACP v. Allen, 340 F.Supp. 703, 705 (M.D.Ala.1972), aff'd, 493 F.2d 614 (5th Cir.1974). Considering the district court's finding and the abundant evidence in the record of consistent past discrimination, we hold that the denial of injunctive relief was an abuse of discretion. This case must therefore be remanded for the district court to fashion an appropriate decree which will be designed to increase the number of blacks in supervisory positions in Evergreen's agencies and departments. Evergreen, 693 F.2d at 1370-71.
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Further where, as here, there has been no evidence that the remedial measure upon which a Defendant relies in attempting to demonstrate cessation is, itself, constitutional, other courts have issued injunctive relief despite cessation of conduct: At oral argument, counsel for the City contended that the order enjoining further use of the 1978 oral interview process and directing them to devise and implement a nondiscriminatory examination and hiring procedure for its police department has been mooted because it has changed that oral interview process. The fact that the defendant in an equity case has ceased its unlawful conduct does not deprive the equity court of power to hear and determine the case. United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). Since one of the purposes, if not the principal purpose, of an injunction is to prevent future violations, the power of a court of equity to grant such an order survives discontinuance of the unlawful action. Id. at 633, 73 S.Ct. at 897. In any event, there is no showing that even the modified oral examination complies with the law; and furthermore, the Maine Human Rights Commission, having proved that unlawful discrimination has existed in the Auburn police hiring process, is entitled to positive action on the City's part to assure the future elimination of any unlawful bias anywhere in that process. An equity court should proceed with restraint in issuing an injunctive order against a governmental body. See Waite v. Macy, 246 U.S. 606, 609, 38 S.Ct. 395, 396, 62 L.Ed. 892 (1918) (Holmes, J.). Oftentimes a mere declaration of legal rights or of legal rules will suffice to govern future official action. Cf. Kelly v. Curtis, Me., 287 A.2d 426 (1972). There is nothing here to suggest, however, that the Superior Court was not sensitive to those established equitable principles; and since it retained full power to issue the injunction even though some modification in the City's interview process apparently had occurred, no error exists in the first paragraph of the Superior Court's judgment that is here under review.
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Maine Human Rights Comm'n v. City of Auburn, 425 A.2d 990, 994-95 (Me. 1981). CONCLUSION Although failing to decipher what Defendants stand to gain from their request, Plaintiffs concede to the dismissal of John Doe Defendants and Defendant Lum in his official capacity. All other relief requested in the motion should be denied. DATED: Honolulu, HI; January 3, 2014. s/Richard L. Holcomb Richard L. Holcomb 9177 Attorney for Plaintiffs
CERTIFICATE OF SERVICE On this, the 3rd of January, 2014, I served the foregoing pleading by electronically filing it with the Courts CM/ECF system, which generated a Notice of Filing and effects service upon counsel for all parties in the case. I declare under penalty of perjury that the foregoing is true and correct. Executed this the 3rd day of January, 2014.

s/Richard L. Holcomb Richard L. Holcomb 9177

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