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Higginson v. Becerra

United States District Court, S.D. California

April 5, 2018

DON HIGGINSON, Plaintiff,
v.
XAVIER BECERRA, in his official capacity as ATTORNEY GENERAL OF CALIFORNIA; and CITY OF POWAY, Defendants.

          ORDER

          HON. WILLIAM Q. HAYES, UNITED STATES DISTRICT COURT.

         The matters before the Court are the motion for injunction pending appeal (ECF No. 69) filed by Plaintiff Don Higginson and the motion for reconsideration (ECF No. 74) filed by the California League of United Latin American Citizens (California LULAC), Jacqueline Contreras, Xavier Flores, Judy Ki, and Hiram Soto (collectively, “Proposed Defendant-Interveners”).

         I. BACKGROUND

         On October 4, 2017, Plaintiff Don Higginson initiated this action by filing a Complaint against Defendants Attorney General Xavier Becerra (the “Attorney General”) and the City of Poway (the “City”). (ECF No. 1). Higginson alleged a cause of action pursuant to 42 U.S.C. §§ 1983 and 1988 for a violation of his rights under the Fourteenth Amendment. Higginson asserted that the California Voting Rights Act (“CVRA”) and the City's Map 133, allegedly enacted as a result of the CVRA, violate the equal protection clause. Higginson sought an order declaring the CVRA and Map 133 unconstitutional and enjoining their enforcement and use.

         On October 19, 2017, Higginson filed a motion for a preliminary injunction. (ECF No. 11). Higginson sought a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a) that temporarily enjoined “Defendant Attorney General Xavier Becerra and his agents from enforcing the California Voting Rights Act and Defendant City of Poway from using Map 133 for elections during the pendency of this action.” Id. at 2. The City filed a response to the motion for a preliminary injunction stating that it takes a neutral position in this litigation and would not actively support or oppose the motion. (ECF No. 16 at 2). The Attorney General opposed the motion for a preliminary injunction on the grounds that Higginson lacks standing and “has not established a likelihood of success on the merits on his Fourteenth Amendment claim” or “any of the remaining factors . . . necessary to show he is entitled to a preliminary injunction.” (ECF No. 22).

         On November 6, 2017, the Proposed Defendant-Interveners filed a motion to intervene and lodged an opposition to the motion for a preliminary injunction. (ECF Nos. 18, 19).

         On November 22, 2017, the Attorney General filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). The Attorney General asserted that Higginson lacks Article III standing to bring this action and that Higginson fails to state a claim upon which relief can be granted. (ECF No. 33). Higginson filed a response in opposition and the City filed a response stating that it takes a neutral position with respect to the motion to dismiss. (ECF Nos. 48, 47).

         On February 23, 2018, the Court issued a ruling on the pending motion to dismiss, motion for a preliminary injunction, and motion to intervene. (ECF No. 68). The Court concluded that Higginson failed to allege sufficient facts to establish Article III standing to bring his equal protection claim against the Attorney General and the City and dismissed the Complaint without prejudice. The Court denied the motion for a preliminary injunction and stated that it “cannot conclude that Higginson has demonstrated a likelihood of success on the merits in light of the determination that the Complaint fails to allege sufficient facts to establish subject matter jurisdiction.” Id. at 20. The Court denied without prejudice the motion to intervene by the Proposed Defendant-Interveners as moot in light of the dismissal of the Complaint for lack of jurisdiction.

         On February 27, 2018, Higginson filed a motion for injunction pending appeal. (ECF No. 69). Pursuant to Federal Rule of Civil Procedure 62(c) and 8(a)(1), Higginson seeks “an order enjoining Defendant Attorney General Xavier Becerra and his agents from enforcing the California Voting Rights Act and Defendant City of Poway from using Map 133 for elections during the pendency of Plaintiff's appeal.” (ECF No. 69 at 2).

         On March 13, 2018, the City filed a response stating that it “intends to take a neutral position in this lawsuit” and “will not support or oppose the Motion.” (ECF No. 71 at 2). The City requests a ruling as soon as possible and states that “[a]bsent an order of the Court directing otherwise, the City will implement district elections pursuant to its Ordinance No. 809 (the ‘Ordinance'), codified in Chapter 2.04 of the City's Municipal Code.” Id.

         On March 13, 2018, the Attorney General filed a response in opposition to the motion for an injunction pending appeal. (ECF No. 72).

         On March 16, 2018, Higginson filed a reply in support of the motion for an injunction pending appeal. (ECF No. 73).

         On March 19, 2018, the Proposed Defendant-Interveners filed a motion for reconsideration of the Order denying their motion to intervene. (ECF No. 74).

         On March 20, 2018, Higginson filed a response in opposition to the motion ...


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