Motion to Affirm — Colón v. Ortiz

Octossr Tzrm, 1974

No. 74-1522

RAFAEL HERNANDEZ COLON, etc.,

APPELLANTS,

v.

GERMAN ORTIZ, et al,

APPELLEES.

ON APPEAL FROM A JUDGMENT OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

APPELLEES’ MOTION TO AFFIRM AND

BRIEF IN SUPPORT OF MOTION TO AFFIRM

Duson & Duson

NacuMan, Fe.tpstern & Gert

Harvey B. NacuMan

San Juan, Puerto Rico 00903

P. O. Box 2407

Attorneys for Plaintiffs, Appellees

Susknrd Fran ine "Boston. Mines — Law Printess

Sn

a ee ee

INDEX

Page

Motion To Affirm ................... iis tte kh oe be 1

Brief in Support of Motion To Afirm treet foe 3

Jurisdictional Statement ..........:............... 3

Questions Presented

I. Whether the Lower Court Correctly Applied the

Teachings of This Court in Declaring Section

1152(b) of Title 21 of the Laws of Puerto Rico

Annotated Unconstitutional and in Enjoining

the Governor and Municipal Assemblymen From

Acting Thereunder. ......................... 3

Counter Statement of the Facts and Case............ 4

AI oo hs 6 8s C00 Ue s pe dd ahae Feb eins <5 shes, 6

I. 21 L.P.R.A. § 1152(b) Violates the Equal Pro-

tection Clause of the Fourteenth Aniendment to

the United States Constitution... .......... 6

II. Jurisdiction of the United States District Court

Was Properly Involved and Exercised. ........ 13

A. The Doctrine of Abstention Is Inapplicable. 13

B. Puerto Rico Is a ‘‘State’’ Within the Mean-

ing of 28 U.S.C. § 1343(3) and 42 U.S.C.

gett ae TRE ER gd enlapedl | gy cane 16

C. The Injunction Is Properly Drawn. ....... 23

REN Pike a Re YS 9 ee RUE: Pee Be ee 23

TaBLE or AUTHORITIES

Cases

Avery v. Midland County, Tezas, 390 U.S. 474, 88 S. Ct.

SE IIS 62 V6. hc onc aShy pivcctucescpss 2, 4

Bailey v. Patterson, 369 U.S. 31, 82 S. Ct. 549, 7 L. Ed.

NG YF; use ev a, ek cies)s oxseias 1, 4

ii Index

Page

Biven v. Six Unknown Agcenis of Federal Bureau of

Narcotics, 403 U.S, 388, 91 S. Ct. 1999, 29 L. Ed. 2d

BE eel a ds cies da Wk fc aah ou wee A Pa 18

Burns v. Richardson, 384 U.S. 73, 86 8. Ct. 1858, 29

eh I Greco ects push ie aaa Pee n ees 9

Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.

663, 94 8. Ct. 2080, 42 L. Ed. 24d 452 ....... 2, 16, 17, 19

Cerezo v. Buso, — U.S. —, 95 S. Ct. 767, 42 L. Ed. 2d

SD 5a ered a a ee ok en ta he A 12

Cipriano v. City of Howna, 395 U.S. 701, 89 S. Ct.

e Fe F BAAS ar eeeeeee il

City of Chicago v. Atchison, Topeka & Santa Fe R. Co.,

357 U.S. 77, 78 S. Ct. 1063, 2 L. Ed. 2d 1174 ........ 14

City of Phoenia v. Kolodziejski, 399 U.S. 204, 90 S. Ct.

ee ee i OD a in eas ain anes 11

District of Columbia v. Carter, 409 U. Ss. 418, 93 S. Ct.

F FS 8 Pee rrr rere 17, 18

Doe v. Bolten, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d

SIA. 5 55s’ a- ania adn a aeasblbriek do ach tanta ae ee ee 19

Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116,

Oe i is pakke epee kui anaes ia 15

Downes v. Bidwell, 182 U.S, 244, 21 8. Ct. 770, 45 L. Ed.

NE hae aii wc the Ra le CE ORG 19

Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed.

hig oe ol ee eee 11, 22

Dusch v. Davis, 387 U.S. 112, 87 S. Ct. 1554, 18 L. Ed

RPT Oia etl tart nS Be Sea ar ha 9

England v. Louisiana State Board of Medical Exami-

ners, 375 U.S. 411, 84S. Ct. 461,11 L. Ed. 24440. 15

Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 8. Ct. 156,

i a a ee aad 15, 20

Forston v. Morris, 385 U.S. 231, 87 S. Ct. 446, 17 L. Ed.

eee ica se CARRIER Petr RD pens AT op ey 11

Index iii

Page

Forston v. Dorsey, 379 U.S. 433, 85 S. Ct. 498, 13 L.

I te ae eae eet wed bat oe 9

Gay v. Board of Registration Commissioners, 466 F.2d

EE pe dae ba ae Ais Gath t'h > aks os bd aucckdas Gane 15

Gibbs v, Titelman, 369 F. Supp. 38 .................. 7

Glidden v. Zdanok, 370 U.S. 530, 82 S. Ct. 1459, 8 L. Ed.

PD Gabe Cee eer COLL, | sos ns os e's 40 anares 18

Gross v. Fox, 349 F. Supp. 1164 ..................65. 7

Hadley v. Junior College District, 397 U.S. 50, 90 S. Ct.

791, 25 L. Ed. 2d 45 (1968) .................. 2, 4, 11

Harris County Commissioners Court v. Moore, __ U.S.

—, 95 8. Ct. 870, 48 L. Ed. 24 23 ............... 13, 14

Hostetter v. Idlewild Bon Voyage Liquor Corp., 377

U.S. 324, 84 S. Ct. 1293, 12 L. Ed, 2d 350......... 16

Kaelin v. Warden, 334 F. Supp. 602 ................ 10

Kramer v. Union Free School District, 395 U.S. 621,

89 S. Ct. 1886, 23 L. Ed. 2d 588 ................... 11

Lake Carriers Association v. MacMullen, 406 U.S. 498,

92 S. Ct. 1749, 32 L. Ed. 2d 257 ................ 14, 15

Lo Frisco v. Schaffer, 341 F. Supp. 748 ............... 12

McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct.

I oe eres daeseces 15

Mancuso v. Taft, 476 F.2d 187 .................005. 8

Monroe v. Pape, 365 U.S. 167, 81 8S. Ct. 473, 5 L. Ed. 2d

i <. cps ptuhae toca uLele dea todas b Teweneies’ iy

Montalvo v. Colon, 377 F. Supp. 1332 ..... 19, 20, 21, 22

Ortiz v. Colon, 385 F. Supp. 111 .......... 3, 6

Palmore v. United States, 411 U.S. 389, 93 g, Ct. 1670,

ie ih ME STU ae ete aent at 21

Patterson v. Burns, 327 F. Supp. 745 ............. 10

Public Utilities Comm’n v. United Fuel Gas Co., 317

U.S. 456, 63 S. Ct. 369, 87 L. Ed. 396 ............. 14

Railroad Commission of Texas v. Pullman Co.,, 312 U.S.

496, 61 S. Ct. 643, 85 L. Ed. 971 ............. a

iv Index

Page

Reetz v. Bozanovich, 397 U.S, 82, 90 8. Ct. 788, 25 L. Ed.

SR eee ae oper fe ee > myer 14

Reynolds v. Sims, 377 U.S. 533, 84 8. Ct. 1362, 12 L. Ed.

BT vb vce Fosas clon sa3 cbs Oe eee sae one vane 2, 4, 7

Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 147 19

Sailors v. Board of Education of County of Kent, 387

U.S. 105, 87 S. Ct. 1549, 18 L. Ed. 2d 650 ...... 2, 4, 10

Salyer Land Co. v. Tulare Lake Basin, 410 U.S. 719,

7 eS FF § ey eer 11

Santiago v. McElroy, 319 F. Supp. 284.............. 7

Stone v. Stovall, 377 F. Supp. 1016 ................. 11

United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209,

Bi es Oe Nigel Ra hd a eek a el ein 21

Wallace v. House, 377 F. Supp. 1192 eat Ry anita CGN de 9

Wesberry v. Sanders, 376 U.S. 1, 848, Ct. 526, 11 L. Ed.

. bdi es |. decd mend Obl ee ces 2, 4

Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858, 29

Fe FF errr ree meotrrianae fies 9

Williams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed.

RM ate i, eer, Fy

Wisconsia v. Constantines, 400 U. S. 433, 91 S. Ct. 507,

—6 8 OF RC a Pe oe < F 15

Younger v. Harris, 401 U.S. 37, 91 8. Ct. 746, 27 L. Ed.

EN Sc sive iat Ein bee et aden h tie cies 14

Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed.

SRE | cies s 04k Ca ee ae ee aniae ta vie 14

Statutes

ee I oo vskains eton + cbs woke ees ah 8

ES es ta) . cihebes'ce caine, «21

re ie, Steeles 17

se Lae dek dee oie - 4, 16, 17

Section 2282 ........ dado hieGele Dat aan ee 18

GE REIS ARS I ASS

Index v

Page

42 U.S.C. Section 1983 .................. 2, 4, 16, 17, 18

48 U.S.C. Section 731 d. (Public Law 600, 64 Stat. 319;

Se a) eri baa 21

7 Ente, OGG E, GE OOM, ccc cece cecss 12

is ici ebectocecces 12

9 L.P.R.A. 2001, e¢ seq. ........ Wine vaubutavehwe ds 12

13 L.P.R.A. Sections 221, ef seg. ..... 6... eee 12

18 L.P.R.A. Sections 601, et seq. .................... 12

21 L.P.R.A. Sections 641, ef seq. .. ..... 0... cece ee, 5

MII ob oes dip wadve se cesyes 5

EERE 5

ens 5

ee ns swe bh enn 5

EE Re ST A 5

eS Vel cicie ces aa 4, 5, 6, 10

ee ee Tule bs aueek Cis 6

23 L.P.R.A. Sections 271, e¢ seq. .............00000e, 12

EE RO, obi ids ecdncabaSee 12

Constitutional Provisions

CI i Ok ee el oe 4, 18, 21

iu the

Supreme Court of the Anited States

Oorosgr Term, 1974

No, 74-1522

RAFAEL HERNANDEZ COLON, ete.,

APPELLANTS,

v.

GERMAN ORTIZ, et al.,

APPELLEES.

ON APPEAL FROM A JUDGMENT OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

MOTION TO AFFIRM

Come now the Appellees by their undersigned counsel

and respectfully move this Honorable Court to affirm the

decision of the three-judge court of the United States Dis-

trict Court of Puerto Rico, on the ground that the issues

raised are so insubstantial that a plenary hearing is not

warranted. Bailey v. Patterson, 369 U.S. 31, 82 S. Ct. 549,

7 L. Ed. 2d 512 (1962).

The Appellants challenge to the decision on the merits

would in effect require a reversal of a complete line of

cases, which represent one of the great achievements of

this Court in making American democracy so viable. Solid

2

support of the lower court’s holding is found in Wesberry

v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481

(1964) ; Reynolds v. Sims, 377 U.S. 538, 84 S. Ct. 1362, 12

L, Ed. 2d 506 (1964); Avery v. Midland County, 390 U.S.

474, 88 S, Ct. 1114, 20 L. Ed. 2d 45 (1967); Sailors v.

Board of Education, 387 U.S. 105, 87 8. Ct. 1549, 18 L.

Ed. 2d 650 (1966) ; Williams v. Rhodes, 393 U.S. 23, 89 S. Ct.

5, 21 L. Ed, 2d 24 (1968) and Hadley v. Junior College

District, 397 U.S. 50, 90 8, Ct. 791, 25 L. Ed. 2d 45 (1969).

The jurisdictional issues raised by Appellants are equally

insubstantial. The doctrine of abstention was examined by

three different District Judges and four judges of the

United States Court of Appeals for the First Cireuit and

was found to be inapplicable.

The jurisdiction of the district court under 28 U.S.C.

§ 2281 was held proper last term in Calero Toledo v.

Pearson Yacht Leasing Co., 416 U.S. 663, 94 S. Ct. 767,

42 L, Eid. 2d 452 (1974).

The argument that 42 U.S.C. § 1983 and its jurisdic-

tional counterpart, 28 U.S.C. § 1343(3) do not apply to

the Commonwealth of Puerto Rico should not be enter-

tained. Carried to its logical conclusion this argument

would effectively deny all citizens and residents in the

Commonwealth of Puerto Rico to the rights, privileges

and immunities guaranteed by the United States Constitu-

tion.

Wuererore, for the. foregoing reasons, more fully

elaborated in the accompanying brief, it is respectfully

prayed that the decision below be affirmed without further

argument.

Duson & Duson

NacuMAN, Fe.pstein & Gert

By:

Harvey B. Nachman

Attorneys for Plaintiffs, Appellees

in the

Supreme Court of the Anited States

Ocroper Term, 1974

No. 74-1522

RAFAEL HERNANDEZ COLON, etc.,

APPELLANTS,

v.

GERMAN ORTIZ, et al.,

APPELLEES.

ON APPEAL FROM A JUDGMENT OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

APPELLEES’ BRIEF IN SUPPORT OF

MOTION TO AFFIRM

Jurisdictional Statement

Jurisdiction has been properly invoked under 28 U.S.C.

§ 1253. However, it is respectfully submitted that the

issues presented are so insubstantial that the opinion below

should be affirmed.

Question Presented

The only real question presented in this appeal is whether

the holding on the merits by the three-judge court in

Ortiz v. Colon, 385 F. Supp. 111 (D.P.R. 1974) is correct.

Even though the question decided by the court below has

4

never been squarely presented in this Court, the motion

for affirmance is proper. Bailey v. Patterson, 369 U.S. 31,

82 S. Ct. 549, 7 L. Ed. 2d 512 (1962). Geographical dilution

of one’s vote is not the only method to effectively disen-

franchise certain voters in order to perpetuate power.

Judge Coffin’s opinion striking down 21 L.P.R.A.

§§ 1152(b) is based upon the solid foundation of this

Court’s teachings in Wesberry v. Sanders, 376 U.S. 1,

84 S. Ct. 526, 11 L. Ed. 2d 481 (1964); Reynolds v. Sims,

377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964);

Avery v. Midland County, 390 U.S. 474, 88 S. Ct. 1114,

20 L. Ed. 2d 45 (1967); Sailors v. Board of Education,

387 U.S. 105, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1966);

Wiliams v. Rhodes, 393 U.S. 23, 89 S. Ct. 5, 21 L. Ed.

2d 24 (1968) and Hadley v. Junior College District, 397

U.S. 50, 90 S. Ct 791, 25 L. Ed. 2d 45 (1969).

The appellants have raised and placed in the forefront

certain alleged jurisdictional barriers. Abstention has been

raised from the outset and has been rejected five times.

The lack of jurisdiction of the District Court of Puerto

Rico, or stated otherwise, the inapplicability of 42 U.S.C.

§ 1983 and its jurisdictional counterpart, 28 U.S.C. §1343(3)

is of recent vintage. In essence, the appellants are claimant

that because of the unique status of the Commonwealth

of Puerto Rico, neither the Fifth or Fourteenth Amend-

ments of the United States Constitution apply in Puerto

Rico, or, if they do, violations thereof by the Common-

wealth may only be redressed in the Commonwealth Courts.

This contention is refuted in the second portion of the

brief.

Counterstatement of the Case

This is an action by citizens, residents and voters of the

Municipality of San Juan, who brought the action on their

own behalf and on behalf of all the residents of San Juan

5

for a declaratory judgment striking the special provisions

for the creation of the San Juan Municipal Assembly as

unconstitutional and for injunctive relief to prevent its

enforcement.

The statutory scheme embodied in 21 L.P.R.A. § 1152(b)

provides for 12 elected members to the Municipal Assem-

bly, no more than 9 of whom may be members of the same

political party, and 5 members to be appointed by the

Governor of Puerto Rico. All assemblymen have the same

powers. No other Municipality in Puerto Rico has ap-

pointed assemblymen, 21 L.P.R.A. 4 1152(a).

The Municipal Assemblies of Puerto Rico have the

power to levy and collect taxes, 21 L.P.R.A. 4§ 641, et seq. ;

the power of eminent domain, acquisitions of property,

public service undertakings, issuance of bonds and the

ability to charge for services, 21 L.P.R.A. §§ 661, et seq.

They have the power to own property, to obtain loans

and grants from the federal government for the construc-

tion of public works and to issue special bonds for such

construction, 21 L.P.R.A. §§ 811, et seq. Municipal govern-

ments also have the power to make temporary loans or

issue temporary bonds or promissory notes subject to a

statutory limit, 21 L.P.R.A. § 921.

Most of the appropriation ordinances require a two

thirds vote of the governing body of the municipality.

Pursuant to 21 L.P.R.A. § 1107 the municipalities are

granted ‘‘fuil legislative and administrative powers in all

matters of 1 municipal nature which redound to the benefit

of the people and for their development and progress,

and are authorized to develop general welfare programs

and to create the necessary organizations for such pur-

pose. Such powers include the operation of a school stu-

dents transportation system, with or without charge, ...’’.

The second paragraph of this same section of law confers

broad legislative and administrative power upon the

Municipal Assembly to govern the affairs of the Munici-

pality.

The mayor of a municipality is the chief executive of-

ficer who must approve and sign the ordinances and re-

solutions of the Municipal Assembly or who may veto

such resolutions. Two thirds of the total members of the

assembly must join in their vote to overrule a Mayor’s

veto. The Municipal Assembly also has the power to create

penal provisions for violation of municipal ordinances.

The broad general duties and powers of the Municipal

Assembly are iterated in 21 L.P.R.A. § 1173.

The statute which treats San Juan differently from all

other municipalities in Puerto Rico dates from 1960.

Despite the stated objectives of the law cited at pages

23-24 of Appellants’ Brief, the only purpose the law serves

is to concentrate political power in the hands of the Gov-

ernor and prevents any effective grass roots leadership

or political power base by the elected officials of San Juan,

be they members of the same political power as the

Governor, or members of an opposition party.

This action was commenced immediately after the inau-

guration of the Governor and prior to the taking of office

by the San Juan Assemblymen. The ‘‘Statement’’ of the

appellants apart from its editorial comments, correctly

sets forth the history of the litigation.

Argument

Port I

21 L.P.R.A. § 1152(b) Viotates tHe Equa Protection

CLAUSE OF THE FourRTEENTH AMENDMENT TO THE UNITED

States ConstTITUTION.

For all of the reasons expressed in the opinion of the

three-judge court, Ortiz v. Colon, 385 F. Supp. 111 (D.P.R.

7

1974), the judgment should be affirmed. Since new argu-

ments have been raised by the defenders of the statute,

a refutation of appellants’ brief is necessary.

The appellees refuse to be drawn into a historical dis-

cussion of the ‘‘democratic’’ nature of the appointed

‘*ecabildos’’. Suffice it to say that the appointed ‘‘cabildo’’

does not satisfy the requirement of the guaranteed re-

publican form of government.’ Nor is there any quarrel

with the proposition that municipal governments are

‘*instrumentalities’’ of the states. Plaintiffs have always

conceded that this concept pervades in American political

life. The three-judge court below also recognized the needed

flexibility and room for innovation in municipal govern-

ment if the modern megalopolis were to be responsive to

a larger, more complicated and varied constituency.

The lower court found that the additional representa-

tion for the minority resulting from the gubernatorial

appointment made it possible for the minority to thwart

any legislative policy of the Assemblyman who received

the majority of the voters’ support. This is a systematic

dilution of the vote of all the residents of San Juan, said

the court, who did not support the successful gubernatorial

candidate. In this analysis, the court was correct. As the

Supreme Court stated in Reynolds v. Sims, 377 U.S. 533,

84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964) at page 565 of the

official report:

‘*Logically, in a socicty ostensibly grounded on re-

presentative government, it would seem reasonable

1 The hoary tradition may be given due weight in many fields but

can have no bearing on fundamental rights. The laws of distress

and distraint, for example, is at least as old as the rise of feudalism.

It had existed in Pennsylvania since Colonial times, yet it was held

unconstitutional following the teachings of this Court. Santiago v.

McElroy, 319 F. Supp. 284 (E.D. Pa. 1970); Gross v. Fox, 349

F. Supp. 1164 (E.D. Pa. 1972); Gibbs v. Titelman, 369 F. Supp. 38

(E.D. Pa. 1973).

8

that a majority of the people of a State could elect

a majority of that State’s legislators. To conclude

differently and to sanction minority control of state

legislative bodies, would appear to deny majority

rights in a way that far surpasses any possible denial

of minority rights that might otherwise be thought to

result’’.

The word ‘‘State’’ con be read in the proper context as

city. Mancuso v. Taft, 476 F.2d 187 (1st Cir. 1973).

But the Court could have gone farther and declared the

statute void on its face. In Puerto Rico, with its polariza-

tion of parties on all issues, dependent upon the official

party platform concerning status, it is obvious that a

governor from one party could, and probably would, block

a San Juan Mayor and Assembly elected by another

party, on any issue that would enhance the public image

of the state-wide minority. Yet, even when the Mayor and

Assemblyman are from the same party, the Governor’s

appointees, who owe no allegiance to the voters or residents

of San Juan, can block any measure of importance in the

Municipal Assembly that requires a two thirds majority.

At the time this law was passed (July, 1960), one party

was in control of Puerto Rico and San Juan and had

been in contro] for nearly 16 years. It was then apparent

that because of its size and growth, the political leader of

San Juan had a base upon which to build support and

have an independent opportunity to challenge the state

wide political leadership within his or her own party. The

appointments by the Governor became the means to exer-

cise an effective check upon the aspirations of the elected

leaders of San Juan of their constituents. This could

destroy democratic processes at the grass root level as the

lower court fully appreciated.

In 1968 the ‘‘opposition’’ party captured the Guberna-

torial post, San Juan Mayoralty and Assembly and the

House of Representatives. The Senate remained in the

hands of the party that had been in control for a genera-

tion. While much legislation and many executive appoint-

ments were stymied because of the interparty strife in the

Legislature, there was also intra-party strife between the

city and state government as well. One piece of legislation

upon which both parties agreed in the Legislature was

House Bill 510. This Bill provided for the election of a

Municipal Assemblyman from each of the eight electoral

districts of San Juan, and six Assemblymen at Large.

The minority parties would be guaranteed three Assem-

blymen. The present Governor, who at the time was Pre-

sident of the Senate, enthusiastically supporte this Bill.

The then Governor vetoed the Bill. The veto cannot be

justified on any governmental basis but only upon an

internecine party-power basis. Certainly, the proposed

measure would have enhanced the republican form of gov-

ernment to which all official documents pay homage. Con-

trarywise, the will of the people would hve been even

more directly represented had the measure nox been vetoed,

because each area of the city would have its own voice in

the legislative body of the city. Conceding, as we must, that

at large representation is not per se unconstitutional,? we

also submit that representation by area with a similar

social and economic point of view is more democratic and

2 Dusch v. Davis, 387 U.S. 112, 87 S. Ct. 1554, 18 L. Ed. 2d 656

(1967); Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858, 29

L. Ed. 2d 363 (1971); Burne v. Richardson, 384 U.S. 73, 86 S. Ct.

1286, 16 L. Ed. 2d 376 (1966); Fortson v. Dorsey, 379. U.S. 433,

85 S. Ct. 498, 13 L. Ed. 2d 401 (1965); But compare Wallace v.

House, 377 F. Supp. 1192 (W.D. La. 1974) and cases cited therein.

While no claim is made that San Juan is geographically divided into

racial groupings, the Court can take judicial notice that it is so divided

economically, as are most cities.

10

a more faithful copy of the model republican form of

government.

There is, therefore, no ‘‘rationale’’ for the present

Section 1152(b). The alleged ‘‘rationale’’ is mere rational-

ization. The motive of the law is political contro] in the

hands of the top party factotum to prevent the loss of

power or prestige to the city government or its elected

officials, A fortiori, if this motive is present when the

same party is in control of both the Governor’s mansion

and the City Hall, it is more strongly felt when the occu-

pants of these houses are of different parties. In the latter

case it does more than destroy the form of republican gov-

ernment, it weighs votes differently depending upon which

voters voted for the successful gubernatorial candidate.

Plaintiffs, appellees realize that this brings into focus an

issue that the majority of the three-judge court did not

meet, i.e, May a state create a local legislative body,

the representatives to which are selected in whole or in

part by the appointive rather than the elective process?

This question was reserved by the Supreme Court in

Sailors v, Board of Education of County of Kent, 387 U.S.

105, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967), but it is the

essence of the problem, The Municipal Assembly of San

Juan is a body with full legislative powers and the avail-

ability of the administrative-legislative distinction is not

present here as it was in Sailors,

We respectfully urge that a legislative body must, under

a republican form of government, be wholly elected, Ap-

pointed officials, other than for a vacancy during an un-

expired term should not be contemplated in a free society.*

A republican form of government is no idle guarantee,

and such a government connotes direct election of all state

3 Patterson v. Burns, 327 F. Supp. 745 (D. Hawaii 1971) (three-

judge court); Kaelin v. Warden, 334 F. Supp. 602 (E.D. Pa. 1971)

(three-judge court).

11

and local legislators. While Forston v. Morris, 385 U.S.

231, 87 S. Ct. 446, 17 L. Ed. 2d 330 (1966) does hold that

under certain circumstances a state legislator may elect

or appoint a governor, the corollary that a governor may

appoint a legislator for anything more than an unexpired

term finds no support anywhere other than in non-demo-

cratic countries. All Americans must be reassured after

weathering a national crisis unparalleled in our history,

that the Constitution works, and that separation of powers

will prevent the usurpation of power by the executive.

The compelling state interest test is the only test that

may be applied in assessing state action where the sanctity

of the vote is concerned, Any exclusion of citizens from

the electoral process in general elections must be measured

against that standard. Kramer v. Union Free School Dis-

trict, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969) ;

Cipriano v. City of Houma, 395 U.S. 701, 89 S. Ct. 1897,

23 L. Ed. 2d 647 (1969); City of Phoenia v. Kolodziejski,

399 U.S. 204, 90 S. Ct. 1990, 26 L. Ed. 2d 523 (1970);

Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d

274 (1972); Stone v. Stovall, 377 F. Supp. 1016 (N.D. Tex.

1974) (three-judge court).° Therefore, the holding of the

majority of the lower court is correct, there remains the

unexpressed conclusion that any legislative body cannot

pass constitutional muster if its members are appointed in

whole or in part for any purpose other than to assure

*It is acknowledged that states need not create municipalities, nor

even grant the franchise to the administrative sub-divisions it may

create. However, once that franchise is granted, the right to vote,

or to nave all citizens votes counted equally may not be conditioned.

Avery v. Midland County, Texas, 390 U.S. 474, 88 S. Ct. 1114,

20 L. Ed. 2d 45 (1968); Hadley v. Junior College District, 397 U.S.

50, 90 S. Ct. 791, 25 L. Ed. 2d 45 (1970).

5 Special elections affecting only certain groups of citizens

need bet ph nw al this rigid test. Salyer Land Co. v. Tulare Lake

Basin, 410 U.S. 719, 93 S. Ct. 1224, 35 L. Ed. 2d 659 (1973).

12

minority representation.® If it is correct to say, as the

Supreme Court and lower court herein has said, ‘‘[it is]

within communities and neighborhoods that political asso-

ciation can be most effective’’ (R. 52), then, it is at that

level that the guarantee of a republican form of govern-

ment must be most dearly defended.

Finally, it must be pointed out that San Juan plays

no more a ‘‘unique’’ role in the life of Puerto Rico than

does Boston in the life of Massachusetts or Honolulu in

the life of Hawaii. The argument in 1960 by the Senate

Majority Leader was specious because none of the activities

he mentioned is controlled by the Municipality. The port

of San Juan (and its international airport) is controlled

by the Puerto Rico Ports Authority. 23 L.P.R.A. §331

et seq. The University of Puerto Rico is no longer con-

centrated in San Juan, but the largest campus remains

within the city’s boundaries. Even that campus is con-

trolled by the Commonwealth government. 18 L.P.R.A.

§601 et seq. The large traffic arteries are within the juris-

diction of the insular government. 9 L.P.R.A. §2001, et seq.

Banking, 7 L.P.R.A. §1, et seq.; The Government Develop-

ment Bank, 7 L.P.R.A. §551 et seq.; the Puerto Rico Indus-

trial Development Company, 23 L.P.R.A. §271 et seq., and

industrial tax exemption, 13 L.P.R.A. §221, et seq. are all

subject to state control. Nor do the appointed members of

the Municipal Assembly represent areas other than San

Juan. All appointed Assemblymen since the statute was

enacted in 1960 have always been San Juan residents.

Appellees respectfully submit that the so-called ‘‘justifica-

® There has never been a claim that guaranteed minority repre-

sentation is unconstitutional. Lo Frisco v. Schaffer, 341 F. Supp.

743. (D. Conn. 1972) (Three-judge court). Under the law in question

this minority guarantee may be converted into minority rule. Cerezo

v. Buso, _. US. __, 95 S. Ct. 767, 42 L. Ed. 2d 795 (1975),

which was dismissed for want of a substantial question also involved

Puerto Rico’s guaranteed minority representation statute.

13

tion’’ for the statute does not even satisfy the lesser stand-

ard of rational and legitimate state interest.

The holding below should be summarily affirmed.

Point II

Jurispiction or THE Unrrep States District Court Was

Property INVOKED AND EXERCISED.

A. The Doctrine of Abstention Is Inapplicable.

Appellant, as do all state, territorial or Commonwealth

governments, raises the pseudo-jurisdictional ground of

abstention. Abstention is a judicially created doctrine first

enunciated in Railroad Commission of Texas v. Pullman

Co., 312 U.S. 496, 61 8. Ct. 648, 85 L. Ed. 971 (1941).

It has become, in some instances, an additional self-imposed

‘‘barrier to the assertion by federal courts of the juris-

diction Congress has bestowed on them.’’ Mr. Justice Doug-

las, dissenting in Harris County Commissioner’s Court v.

Moore, — U.S. —, 95 S. Ct. 870, 878, 43 L. Ed. 2d 23

(1975). The Governor, appellant herein, has raised the

issue three times before the District Court of Puerto Rico

and twice before the United States Court of Appeals for

the First Circuit.

Appellants .ow contend that in light of the opinion in

Harris County Commissioner’s Court v. Moore, __ U.S. —,

95 S. Ct. 870, 43 L. Ed. 2d 23 (1975), the three different

district court judges and the four judges of the Court

of Appeals erred in reading the prior decisions of this

Court. The nub of the abstention doctrine as stated in

Harris County Commissioner’s Court is that ‘‘when a

federal constitutional claim is premised upon an unsettled

question of state law, the federal court should stay its nand

in order to provide the state courts an opportunity to

14

settle the underlying state law question and thus avoid the

possibility of unnecessarily deciding a constitutional ques-

tion.’’ 95 8. Ct. at 875. Abstention, however, may only be

invoked in ‘‘special cireumstances’’, Zwickler v. Koota,

389 U.S. 241, 248, 88 8. Ct. 391, 395, 19 L. Ed. 2d 444 (1967).

The ‘‘special circumstance’’ that the District Court in

Zwickler thought controlling was that the state statute

could be construed by the state courts to avoid or modify

the constitutional question. In reversing, this Court said,

‘*But we have here no question of a construction of [the

statute involved] that would ‘avoid or modify the consti-

tutional question’ ’’. 389 U.S. at 249, 88 S. Ct. at 396,

Appellants admit that ‘‘the statute itself has only one

interpretation’’. Appellants’ Brief, p. 14. They must also

admit that a state law claim was not raised in the complaint.

Even were the Commonwealth Supreme Court to pass upon

the question and construe the Municipal Law as a valid

exercise of legislative power, it would not, in any way,

affect the federal claim. City of Chicago v. Atchison,

Topeka & Santa Fe R. Co., 357 U.S. 77, 84, 78 S. Ct. 1963,

1067, 2 L. Ed. 2d 1174 (1958); Public Utilities Comm’n v.

United Fuel Gas Co., 317 U.S. 456, 462-463, 63 S. Ct. 369,

373-374, 87 L. Ed. 396 (1943).

There are four main policy considerations in the appli-

cation of abstention:

1. The avoidance of a premature constitutional deci-

sion by a possible narrowing construction of the state law

by a state court. Lake Carriers Association v. MacMullan,

406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d 257 (1972).

2. The avoidance of needless conflict in the federal-

state relationships. Younger v. Harris, 401 U.S. 37, 91

S. Ct. 746, 27 L. Ed. 2d 669 (1971).

3. The avoidance of the federal judiciary making ten-

tative decisions on issues of state law. Reetz v. Bozanich,

397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970); or the

ee

15

decision on the constitutionality of a state statute that is

vague and has never been interpreted by the state tribunals.

Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S. Ct. 156, 27

L. Ed, 2d 174 (1970).

4. The avoidance of unnecessary interference with

state functions or regulatory scheines. Lake Carriers’

Association v. MacMullan, supra.

None of the foregoing considerations is applicable.

There can be no other meaning of the statute and no

matter what a tribunal in Puerto Rico may say of the

constitutionality of the statute, the federal claim would

require federal adjudication. Whether the Supreme Court

of Puerto Rico were to say, as the appellant says in its

brief, that the Commonwealth Courts should be the first

(if not the sole) arbiter of constitutionality, does not affect

the federal rights of plaintiffs to equal protection of the

law.”

If deference must be given to the unique status of Puerto

Rico or its special relationship with the United: States,

that consideration does not embrace any different standard

of testing the federally protected rights of citizens than

7In Gay v. Board of Registration Commissioners, 466 F.2d 879

(6 Cir. 1972) after outlining policy considerations in the doctrine

of abstention, the Court also listed the exceptions to the rule as

distilled from Supreme Court opinions. Abstention is improper

(1) if the underlying issue of state law is not the controlling issue,

McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433,

10 L. Ed. 2d 622 (196a), (2) ‘if the federal right is not ‘entangled

in a skein’ of state regulations, McNeese v. Board of Education,

supra, (3) if it would require piecemeal litigation, England v.

Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct.

461, 11 L. Ed. 2d 440 (1963); (4) if the issue of state law is certain

and does not relate to questions which only a state court could

authoritatively construe. Wisconsin v. Constantineau, 400 U.S. 433,

91S. Ct. 507, 27 L. Ed. 2d 515 (1970); Fornaris v. Ridge Tool Co.,

supra. ‘There are, indeed, still other exceptions, viz., to prevent

immediate loss of constitutional rights, Dombrowski v. Pfister, 380

U.S. 479, 85 S. Ct. 1116, 14 L, Ed. 2d 22 (1965).

16

does the relationship between the United States and any

State.

The tortuous path of this litigation, including the refusal

by the Commonwealth to enact legislation that would have

avoided the injunction, indicates a clear desire for delay.

For political rather than governmental reasons, there has

been an attempt to prevent a final adjudication in time for

proper procedures in the 1976 elections. This long delay,

by itself, is sufficient reason to reject the doctrine of

abstention in this case. Hostetter v. Idelwild Bon Voyage

Liquor Corp., 377 U.S. 324, 329, 84 S. Ct. 1293, 1296, 12 L.

Ed. 2d 350 (1964).

B. Puerto Rico Is a ‘‘State’’ Within the Meaning of

28 U.S.C. §13843(3) and 42 U.S.C. §1983.

In Calero-Toledo v. Pearson Yacht Leasing Co., 416 US.

663, 94'S, Ct. 2080, 40 L. Ed. 2d 452 (1974), rehearing denied

417 U.S. 977, 94 8S. Ct. 3187, 41 L. Ed. 2d 1148, (1974),

it was stated:

‘* |. we believe that the established federal judicial

practice of treating enactments of the Commonwealth

of Puerto Rico as ‘‘State statute[s]’’ for purposes

of the Three-Judge Court Act, serves, and does not

expand the purposes of [28 U.S.C.] §2281. We there-

fore hold that a three judge court was properly con-

vened under that statute, and that direct appeal to

this Court was proper under 28 U.S.C. §1253 .. .”’

At the end of the omitted footnote, the Court added,

‘*We have no occasion to address the question whether

Puerto Rico is a ‘State’ for purposes of 28 U.S.C.

$1343, a jurisdictional basis of appellee’s complaint.

17

Since the complaint and lease agreement, as ncorpo-

rated, fairly read, leave little doubt that the matter

in controversy exceeds $10,000 and arises under the

Constitution of the United States, there is jurisdiction

under 28 U.S.C. §1331.’’

In the instant case there is likewise no doubt that the

matter in controversy arises under the Constitution of the

United States, and such jurisdictional basis is alleged in

the complaint. But jurisdiction under 28 U.S.C. 41331

was not specifically alleged in the complaint, although it is

hard to believe that the value of the right to vote and have

one’s vote equally counted, does not likewise exceed the

value of $10,000.

Seizing upon the footnote in Calero-Toledo, appellants

at oral argument in the Court of Appeals in February

1975, raised the argument that the District Court had no

original jurisdiction under 28 U.S.C. §1343 because like

the District of Columbia—as held in District of Columbia

v. Carter, 409 U.S. 418, 93 S. Ct. 602, 34 L. Ed. 2d 613

(1973), rehewring denied, 410 U.S. 953, 93 S. Ct. 1411,

35 L. Ed. 2d 694 (1973)—Puerto Rico is neither a ‘State

or Territory’ within the meaning of that statute. An

analysis of this argument shows that what the Common-

wealth officiais are really advocating is that the Fourteenth

Amendment does not apply to Puerto Rico. Since they also

insist that the Fifth Amendment is equally inapplicable,

after the achievement of Commonwealth status, they con-

tend that the ultimate decision concerning federally guaran-

teed rights of citizens, residents of Puerto Rico lies, not in

the federal judiciary, but in the Commonwealth Courts.

The history of 42 U.S.C. §1983 has been set forth by this

Court in District of Columbia v. Carter, supra. Briefly,

the genesis of §1983 is in §1 of the Ku Klux Klan Act

of 1871, Act of April 20, 1871, §1, 17 Stat. 13, the primary

18

purpose of which was ‘‘to enforce the Provisions of the

Fourteenth Amendment’’. The commands of that Amend-

ment are addressed only to the State or to those acting

under color of its authority. But unlike the Amendment

upon which it is based, 41983 applies equally to ‘‘any

State or Territory’’. Congress has plenary control over

the territories, but as pointed out in Glidden Co. v. Zdanok,

370 U.S. 530, 546, 82 S. Ct. 1459, 1470, 8 L. Ed. 2d 671

(1962), the scope of delegated powers to the territories

was nearly as broad as that enjoyed by the States.

The 1871 Act and the present 41983 were passed ‘‘to

afford a federal right in federal courts because, by reason

of prejudice, passion, neglect, intolerance or otherwise,

state laws might not be enforced and the claims of citizens

to the enjoymert of rights, privileges and immunities

guaranteed by the Fourteenth Amendment might be denied

by the state agencies.’’ Monroe v. Pape, 365 U.S. 167, 180,

81 S. Ct. 473, 480, 5 L. Ed. 2d 492 (1961). Everywhere

the word ‘‘state’’ is included in the foregoing quote, it

can be read ‘‘state or territory’’. These statutes, however,

did not apply to either the federal government or the

District of Columbia. District of Columbia v. Carter, supra.

Federal laws and the acts of federal officials under color

of authority are subject to review in the federal courts

under the Constitutions and laws of the United States. Any

statute allegedly depriving citizens of equal protection of

the laws could be challenged under the Fifth Amendment

and 4§ 2282 and 2284 of Title 28. A federal official can

be enjoined without enabling legislation, Bivens v. Six

Unknown Agents of Federal Bureau of Narcotics, 403 U.S.

388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Thus, while

§1983 is inapplicable to the District of Columbia, there

always exists a remedy in the federal courts to protect

the rights, privileges and immunities guaranteed by the

Fifth Amendment.

19

In Montalvo v. Colon, 377 F. Supp. 1332 (D.P.R. 1 74)

a post-Calero-Toledo decision, a similar issue was raised.

Montalvo represented a challenge to Puerto Rico’s criminal

abortion statute in the light of this Court’s decisions in

Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147

(1973) and Doe v. Bolten, 410 U.S. 179, 93 S. Ct. 739,

35 L. Ed. 2d 201 (1973). Injected into that controversy

was the issue of whether the opinions of this Court applied

to Puerto Rico, 377 F. Supp. at 1335 fn. 3. After reviewing

the status of Puerto Rico as expressed in judicial decisions

through the change in status from territory to Common-

wealth, commencing with Downes v. Bidwell, 182 U.S. 244,

21 S. Ct. 770, 45 L. Ed. 1088 (1901) and ending with

Caleru-Toledo v. Pierson Yacht Leasing Co., 416 U.S. 663,

94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974), the three judge

court concluded:

‘Finding such great similarity in the practical and

theoretical application of the tests used as to both

states and unincorporated territories, we may assume

that the notion of ‘fundamental rights, which has

undergone such a metamorphosis in the context of

interpretation of the Fourteenth Amendment, must

be deemed to have had a similar expansion as to

Puerto Rico. In addition, we think that we may safely

assume that when a personal right has been found

applicable to the states via the Fourteenth Amend-

ment, we may then assume that such right is appii-

cable to Puerto Rico, regardless of the theoretical

means used to achieve such a result. After all, citizens

of Puerto Rico, in common with citizens of states,

are citizens of the United States. In addition, histori-

cally, when fundamental rights are involved, courts

have been hesitant to find the protection of the United

States Constitution lacking and this is no less true

20

since the advent of Commonwealth. See Figueroa Ruiz

v. Delgado, supra [359 F.2d 718 (1st Cir. 1966) ].

Nothing in the course of the creation of a new political

status for Puerto Rico in 1950-1952 indicated that

such a drastic change in regards to protection of fun-

damental personal liberties was contemplated. On the

whole, therefore, while consideration must be given

to the unique history and status of Puerto Rico, rights

applicable to the states under the Fourteenth Amend-

ment will be found similarly applicable to the Common-

wealth’’. 377 F..Supp. at page 1341. (footnotes omit-

ted).

The Court of Appeals’ decision of February 28, 1975,

when it dismissed the appellants’ appeal, did not rely solely

upon a comparison of the American citizens in Puerto Rico

with the American citizens of the 51 states, as claimed by

the appellants. It rejected, out of hand, the analogy between

the District of Columbia and the Commonwealth of Puerto

Rico. It said:

‘**The Commonwealth’s situation is precisely ‘the

opposite [from that of the District]. Indeed, the very

reasons which called in Calero Toledo for the Com-

monwealth’s special protection by a three-judge district

court as a matter of comity and respect—its sovereign

status and functional independence from Congres-

sional control—call with equal force for the special

protection of the Commonwealth’s citizens against

unwarranted and otherwise insufficiently checked gov-

ernmental action provided by 42 U.S.C. §1983 and

28 U.S.C. §1343(3)’’

Appendix to Appellants’ Brief, p. 35a.

There is nothing in either Fornaris v. Ridge Tool Co.,

400 U.S. 41, 42 n. 1, 91 S. Ct. 156, 157, 27 L. Ed. 2d 174

21

(1970) or Palmore v. United States, 411 U.S. 389, 93 S. Ct.

1670, 36 L. Ed. 2d 342 (1973) that dilutes the Montalvo

rationale or that of the Court of Appeals quoted above.

Those cases do not deal with the status of either the

District of Columbia or the Commonwealth of Puerto Rico

nor with rights of citizens to challenge governmental action,

but, in their procedural holdings, at least, only with the

appellate power of this Court as expressed in 28 U.S.C.

$1254 (2).

The main thrust of the Commonwealth’s argument is

that because it has a higher degree of autonomy over local

matters than do states, and to consider it a territory would

be demeaning, any federal court review of violations of

allegedly federally protected rights, is incompatible with

its sui generis status under the ‘‘Compact’’. (Public Law

600, 64 Stat. 319; 66 Stat. 327, 48 U.S.C. §731d.) That

proposition and the purpose of the Civil Rights Act cannot

be reconciled. It would shed all residents of Puerto Rico of

the cloak of protection offered by the federal constitution.

Appellees are not stating that tais Court must decide

at this point whether for the future development of the

unique relationship between the United States and Puerto

Rico, the Fifth or Fourteenth Amendment must be invoked

in all conceivable political, social or economic contexts.

There may very well be areas where certain laws of Con-

gress should not apply to Puerto Rico. But in the realm

of fundamental rights afforded all citizens and aliens there

ean be-no distinction between residents of Puerto Rico and

any other part of this country. Foreclosing the federal

court as the forum for redress of those rights would chill

the assertion of constitutional right by penalizing those

who choose to exercise them. If such a law were enacted

by Congress it would be patently unconstitutional. United

States v. Jackson, 390 U.S. 570, 581, 88 S. Ct. 1209, 1216,

20 L. Ed. 2d 138 (1968).

22

The denial of the franchise is the denial of a fundamental

right. Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995,

31 L. Ed. 2d 274 (1972). Any law prohibiting access to the

federal court to redress that right, would itself be a denial

of equal protection. Nearly all State judges would feel

themselves the equals of federal judges in protecting con-

stitutional rights. The Puerto Rico Supreme Court is not

unique in that respect. Nevertheless, Congress entrusted

the task to the federal judiciary and there, as pointed out

by .e Puerto Rican federal judges in Montalvo v. Colon,

supra, it should remain.

C. The Injunction Is Properly Drawn.

In 1972 Puerto Rico had elected a Governor and legis-

lature dominated by the Popular Democratic Party. At

the same time the majority of the voters of the Munici-

pality of San Juan voted for a Mayor and Municipal

Assembly representing the New Progressive Party. For

three years that Municipal Assembly has been unable to

effectively legislate, even within the limited sphere of its

authority, because all important legislation requires a two-

thirds majority. With the Governor’s appointees (5) and

the guaranteed minority representation (2), to the Gover-

nor’s party, it is impossible to muster a_ two-thirds

majority. The campaign promises and platforms of any

duly elected majority party in San Juan, are thus, subject

to the whim of a single person. This is not a representative

democracy and the plaintiffs along with all who voted

for the New Progressive Party are suffering irreparable

injury.

At no time, not even at the hearing in April, 1975, did

the appellants offer a form of injunction that they deemed

appropriate. The proposal in their brief is incom) rehen-

sible. In effect, they are requesting either no Municipal

ed

election in 1976, or another year of delay before the same

injunction fashioned by the three-judge court is put into

effect. It demonstrates the same cavalier attitude toward

fundamental constitutional rights as displayed in their

jurisdictional argument where they claim that they should

be the final arbiter of those rights.

The injunction was reluctantly imposed only when the

Commonwealth refused to act. It should be immediately

reinstated.

Conclusion

The judgment of the court below should be affirmed.

Respectfully submitted,

Dvuson & Duson

NacHMAN, Fe.pstein & GELP1

By:

Harvey B. NacoMan

Attorneys for Plaintiffs, Appellees