Appendix — Colegio de Abogados de Puerto Rico v. Schneider
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FILED
50+1 axd MAR 20 1991
No. 90-
OFFICE GF iE CLERK
In the
Supreme Court of the United States
OcrTosBEer TERM, 1990
COLEGIO DE ABOGADOS DE PUERTO RICO,
PETITIONER,
v.
ROBERT E. SCHNEIDER; HECTOR RAMOS; ORESTE
V. RAMOS; JORGE F. ROMANY; AND JORGE SOUSS.
RESPONDENTS.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
APPENDIX TO
PETITION FOR WRIT’OF CERTIORARI
Cs vos V. Garcia GUTIERREZ
Luis M. VILLARONGA
Car_Los RopriGuez VIDAL
Harry ANDUZE MONTANO’
117 Eleanor Rooselvelt Ave.
Suite 3030
Hato Rey, P.R. 00918
(809) 250-7171
Attorneys for Petitioner
Marcu 19, 1991 “COUNSEL OF RECORD
Blanchard Press, Inc., Boston, Mass. — Law Printers (617) 426-6690
TABLE OF CONTENTS
APPENDIX A Page
Oninion of the Court of Appeals for the First Cir-
cuit, entered on October 24, 1990.............. A-l
APPENDIX B
Order of the Court of Appeals for the First Circuit
denying petition for rehearing with suggestion of
en banc, entered on December 20,1990 ........ A-37
APPENDIX C
Opinion of the Court of Appeals for the First Cir-
cuit, entered on December 8, 1982, 695 F.2d 17.. A-39
APPENDIX D
Opinion of the Court of Appeals for the First Cir-
cuit, entered on August 1.3, 1984, F.2d 32 . | A-58
APPENDIX E
Opinion of the District Court for District of
Puerto Rico, entered on September 13, 1982, 546
F.Supp. IZ51...... , | | A-82
APPENDIX F
Opinion of the District Court for District of
Puerto Rico, entered on June 16, 1983, 565 F.2d
Pears i cess ne ee a , A-125
APPENDIX G
Opinion of the District Court for District of
Puerto Rico, entered on August 21, 1987, 670 F.
EE, aa ecu es Le | . A-164
APPENDIX H
Opinion of the District Court for District of
Puerto Rico, entered on March 3, 1988, 682 F.
OME cca ss Fa bes cae Cates Ge eta A-180
APPENDIX I
Opinion of the Supreme Court of Puerto Rico
entered on June 12, 1982, 112 DPR 540, 12 Of-
oo, ees .. A-22]1
ii Table of Contents
APPENDIX J Page
Opinion of the Supreme Court of Puerto Rico
entered on June 26, 1986, 117 DPR 504, __ Of-
ilel Fe on ee Tia eee eer owes A-243
APPENDIX K
Partial Transcript of Proceedings before the
District Court
APPENDIX L
Statutory Appendix — 4 L.P.R.A. § 774, § 775,
§ 781 & § 783
APPENDIX M
Statutory Appendix — 4 L.P.R.A. § 1006 &
2. Sree err ene ek .. A-305
\
APPENDIX A
United States Court of Appeals
For the First Circuit
Nos. 88-1937 to 88-1939
Robert E. SCHNEIDER, Jr., et al..
PLAINTIFFS, APPELLEES,
v.
COLEGIO de ABOGADOS de PUERTO RICO,
DEFENDANT, APPELLANT.
Rospert E. SCHNEIDER, Jr., et Av.,
PLAINTIFFS, APPELLEES,
v.
COLEGIO de ABOGADOS de PUERTO RICO, et al.,
DEFENDANTS, APPELLEES.
Appeal of Carmen Ana CULPEPER, etc., et al.,
DEFENDANTS.
Robert E. SCHNEIDER, Jr., et al.,
PLAINTIFFS, APPELLANTS,
v.
COLEGIO de ABOGADOS de PUERTO RICO, et al.,
DEFENDANTS, APPELLEES.
HEARD Nov. 2, 1989.
Decipep Oct. 24, 1990.
Robert E. Schneider, Jr., with whom Hector L. Marquez
was on brief, for Robert E. Schneider, Jr., et al.
Anabelle Rodriguez-Rodriguez, Asst. Sol. Gen., with whom
Rafael Ortiz-Carrion, Sol. Gen., Jorge E. Perez Diaz, Sol.
A-2
Gen., and Norma Cotti-Cruz, Deputy Sol. Gen., were on
brief for Carmen Ana Culpeper, etc., et al.
Harry Anduze Montano with whom Carlos V. Garcia Guti-
errez, Carlos A. Rodriguez Vidal, Pia Gallegos, Patricio Mar-
tinez, and Carlos Ramos, were on brief, for Colegio de
Abogados de Puerto Rico.
Before CAMPBELL, Circuit Judge, Corrin, Senior Circuit
Judge, and Pirras,* District Judge.
CorFin, Senior Circuit Judge.
This case requires us to add another chapter, still not the
final one, to an already lengthy saga concerning the constitu-
tionality of Puerto Rico’s system of mandatory bar member-
ship. In the decision on appeal, the United States District
Court for the District of Puerto Rico held that compelled
membership in the bar association known as the Colegio de
Abogados de Puerto Rico (“Colegio’’) is unconstitutional in its
present form. Schneider v. Colegio de Abogados de Puerto
Rico, 682 F.Supp. 674 (D.P.R. 1988). The district court also
invalidated statutes requiring that lawyers affix official
stamps, sold by the Colegio, to all court documents. We agree
that the present system is constitutionally deficient, and there-
fore in large part affirm the conclusions of the district court.
We modify the court’s judgment, however, to delay tempo-
rarily an injunction prohibiting mandatory dues so that the
Colegio may remain integrated while it attempts to correct its
constitutional defects.' We also limit the court’s holding on the
stamp statutes.
I. Legal and Factual Background
We detailed the origins and early history of this case at
length when the dispute last came before us. See Romany v.
Colegio de Abogados de Puerto Rico, 742 F.2d 32 (Ist Cir.
*Of the District of Puerto Rico, sitting by designation.
' An “integrated” bar is an association of attorneys in which membership
and dues are required as a condition of practicing law in the jurisdiction
=
A-3
1984). The district court in its most recent decision also set
forth a thorough review of the prior proceedings. See Colegio,
682 F.Supp. at 675-679. We see no need to repeat, once again,
the full factual and procedural background of this case. This
opinion therefore shall contain only that history necessary for a
full understanding of the issues we decide today.
Accordingly, we begin this background section by stating
briefly the constitutional claim raised by plaintiffs and review-
ing the federal law relevant to that claim. The next subsection
describes the Colegio system as it presently exists. We then
review the district court’s decision. In Section II of the opin-
ion, we briefly discuss jurisdiction and appealability issues.
Section III contains our analysis and conclusions. The remain-
ing sections discuss the stamp issue and damages, and provide
a brief summary of the opinion.
A. Constitutional Principles
Plaintiffs, five attorneys, claim that Puerto Rico’s manda-
tory system of bar membership violates their First Amendment
freedom of association by depriving then of the right not to
associate with the Colegio, which conducts activities they find
objectionable.? Their primary complaint is that the Colegio
uses their compulsory dues and fees to publicly espouse views
and support causes, with which they disagree, on controversial,
issues far removed from the immediate concerns of lawyers.
These issues have in the past included supporting the Sandi-
nista Front for National Liberation in Nicaragua, forcing the
United States Navy to leave the island of Vieques, stopping the
? Plaintiffs brought this action against the Colegio and the Common-
wealth Secretaries of the Treasury and of Justice, and the Justices of the
Puerto Rico Supreme Court, based on the alleged unconstitutionality of sta-
tutes compelling bar membership and payment of dues and stamp fees. See
P.R.Laws Ann. tit. 4, §§ 771-785, 1006, 1038. The Justices remain in the
case as nominal parties only in respect to the stamp claims. See In re Justices
of the Supreme Court of Puerto Rico, 695 F.2d 17, 20-27 (Ist Cir. 1982).
Thus, the defendants appealing at this time are only the Colegio and the
Secretaries.
A-4
draft, and amending the electoral law in Puerto Rico. See
Schneider v. Colegio de Abogados de Puerto Rico, 565
F.Supp. 963, 966-971 (D.P.R. 1983); 682 F.Supp. at 679-681.
In a decision reached after oral argument in this case, and
for which we held up our opinion, the United States Supreme
Court addressed a virtually identical claim made by 21 mem- |
bers of the California bar. In Keller v. State Bar of California,
___. : U.S. ___, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990), the
Court reaffirmed its earlier conclusion that compelled mem-
bership in a state bar association, and the exaction of compul-
sory dues, do not per se violate an individual’s First Amend-
ment rights, see Lathrop v. Donahue, 367 U.S. 820, 81 S.Ct.
1826, 6 L.Ed.2d 1191 (1961).* The court went on, however, to
establish for the first time that the principles it previously had
developed for the permissible use of compulsory union dues
are equally applicable for the use of mandatory bar dues.
Abood [v. Detroit Board of Education, 431 U.S. 209
(97 S.Ct. 1782, 52 L.Ed.2d 261] (1977)] held that a union
could not expend a dissenting individual’s dues for
ideological activities not “germane” to the purpose for
which compelled association was justified: collective bar-
gaining. Here the compelled association and integrated
bar is justified by the State’s interest in regulating the
legal profession and improving the quality of legal serv-
ices. The State Bar may therefore constitutionally fund
activities germane to those goals out of the mandatory
dues of all members. It may not, however, in such man-
ner fund activities of an ideological nature which fall out-
side of those areas of activity.
* Like the California and Michigan bar associations at issue in Keller and
Lathrop, the Colegio is an organization established by statute to regulate the
legal profession and perform other functions associated with improving the
administration of justice. See P.R.Laws Ann., tit. 4, §§ 771-773. We there-
fore start from the proposition that the Commonwealth constitutionally may
condition the right to practice law upon membership in the Colegio. See
Keller, 110 S.Ct. at 2232-33 (quoting Lathrop).
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110 S.Ct. at 2236.
The Supreme Court recognized that its limitation on the use
of mandatory bar dues was not self-executing and that a diffi-
cult problem remained in defining the class of activities ger-
mane to “regulating the legal profession and improving the
quality of legal services.” Jd. The Court again found the union
context helpful in setting guiding principles, and quoted from
its decision in Ellis v. Railway Clerks, 466 U.S. 435, 448, 104
S.Ct. 1883, 1892, 80 L.Ed.2d 428 (1984):
“[W hen employees such as petitioners object to being
burdened with particular union expenditures, the test
must be whether the challenged expenditures are neces-
sarily or reasonably incurred for the pur dose of perform-
ing the duties of an exclusive representative of the em-
ployees in dealing with the employer on labor-manage-
ment issues. Under this standard, objecting employees
may be compelled to pay their fair share of not only the
direct costs of negotiating and administering a collective-
bargaining cantract and of settling grievances and dis-
putes, but also the expenses of activities or undertakings
normally or reasonably employed to implement or effec-
tuate the duties of the union as exclusive representative of
the employees in the bargaining unit.”
We think these principles are useful guidelines for deter-
mining permissible expenditures in the present context as
well. Thus, the guiding standard must be whether the
challenged expenditures are necessarily or reasonably in-
curred for the purpose of regulating the legal profession
or ‘improving the quality of the legal service available to
the people of the State.’ Lathrop, 367 U.S., at 843 [81
S.Ct. at 1838] (plurality opinion).
110 S.Ct. at 2236. Even with this standard, however, the
Court acknowledged that the line will be difficult to draw
A-6
between those State Bar activities in which the officials
and members of the Bar are acting essentially as profes-
sional advisors to those ultimately charged with the reg-
ulation of the legal profession, on the one hand, and those
activities having political or ideological coloration which
are not reasonably related to the advancement of such
goals. ... But the extreme ends of the spectrum are clear:
Compulsory dues may not be expended to endorse or ad-
vance a gun control or nuclear weapons freeze initiative;
at the other end of the spectrum petitioners have no valid
constitutional objection to their compulsory dues being
spent for activities connected with disciplining members
of the bar or proposing ethical codes for the profession.
Id. at 2237.
The Court in Keller also acknowledged that state bar asso-
ciations may encounter added inconvenience or burden in en-
suring that compulsory dues are used only for permissible pur-
poses, but observed that “‘such additional burden or incon-
venience is hardly sufficient to justify contravention of the
constitutional mandate,” 110 S.Ct. at 2237 (quoting Keller v.
State Bar, 47 Cal.3d 1152, 1192, 255 Cal. Rptr. 542, 568, 767
P.2d 1020, 1046 (1989) (Kaufman, J., concurring and dis-
senting)).
The Court therefore held that a permissible system of man-
datory bar membership must include a mechanism for protect-
ing the rights of dissenting members to withhold financial sup-
port of activities that fall outside the bar's core purposes.‘ On
the limited record before it, the Court declined to speculate on
the various methods a bar association might adopt to accom-
plish the required segregation of funds. The justices noted,
however, that the procedure they deemed adequate for unions
in Teachers v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.
* We shall use the phrases “core purposes” or “core functions” throughout
this opinion to refer to the bar's responsibility for regulating the legal profes-
sion and improving the quality of the legal service available to the people of
the Commonwealth
A-7
Ed.2d 232 (1986), also would suffice in the bar setting. 110
S.Ct. at 2237. In Hudson, the Court held that “the constitu-
tional requirements for the collection of fees include an
adequate explanation of the basis for the fee, a reasonably
prompt opportunity to challenge the amount of the fee before
an impartial decisionmaker, and an escrow for the anvounts
reasonably in dispute while such challenges are pending.” 475
U.S. at 310, 106 S.Ct. at 1078.
Before turning to our analysis of whether the Colegio sys-
tem, which is modeled after the Hudson procedure, fulfills
these constitutional requirements, we complete our back-
ground summary by describing that system and why the dis-
trict court found that it is inadequate to protect its members’
First Amendment rights.
B. The Colegio System®
In 1982, in the course of state proceedings involving some of
the attorneys who are plaintiffs in this federal case, the
Supreme Court of Puerto Rico upheld under state law compul-
sory membership in the Colegio and compulsory financial sup-
port of the bar. See Colegio de Abogados v. Schneider, 112
D.P.R. 540, 12 Official Translations of the Opinions of the
Supreme Court of Puerto Rico 676 (1982). Consistent with
federal law, however, the court held that lawyers who dis-
sented from ideological activities not related to the Colegio’s
purposes must have the right to prevent the use of their funds
for those activities. The court ordered that a remedy be de-
signed to protect the dissenters’ right to object and, in a 1986
ruling, it adopted the rebate and escrow procedure that is
challenged in this case (“the 1986 Rule”). Schneider v. Colegio
de Abogados, 117 D.P.R. 504 (1986), Official Translation of
the Supreme Court of Puerto Rico, slip op. (June 26, 1986)
(hereinafter Schneider, Official Translation).
* In this section, and throughout Section I, we will focus entirely on the
collection of mandatory dues. We will discuss the stamp issue separatels
below. See Section IV infra
A-8
The elements of the Supreme Court procedure are as
follows:
1. An interest-bearing escrow account must be set up, into
which 15 percent of dissenting attorneys’ dues will be
deposited.
2. Dissenting attorneys may, at the time they pay their
dues, file a general objection to the use of their dues for ideolog-
ical activities unrelated to the core purposes of the Colegio, and
eventually receive a refund of the proportion of their dues based
on the cost of all activities found-to be “objectionable,” or
3. Attorneys may object on a case-by-case basis throughout
the year, receiving a proportionate refund based on the cost of
the specific activities to which they objected.
4. Athree-member panel, composed of retired members of
the Puerto Rico judiciary, will determine which activities are
truly “objectionable” and whether the 15 percent escrow
figure should be modified at some later date. This Review
Board has promulgated regulations governing the objection
procedure. See App. II at 323-344.
5. Dissenting members may not object to the use of their
funds for activities related to any of 15 listed “functions and
purposes” of the Colegio. Schneider, Official Translation, slip
op. at 17-18.
C. The District Court Opinion
1. Defects. The district court found two significant defects
in the Supreme Court's remedy. First, it held that the 1986
Rule fails to limit adequately the types of activities that may be
funded with compulsory fees. Second, the method used to ac-
commodate dissenting members, including the 15% escrow,
falls short of the procedures required by the Supreme Court
for protecting dissenters’ rights. We now describe its findings
with regard to each of these in some detail.
a. Activities Suitable for Compulsory Funding. The 1986
Rule provides for mandatory support for all “[a|ctivities com-
A-9
prised within the Bar Association’s purposes and ends which
are germane thereto.” Schneider, Official Translation, slip op.
at 17. In other words, if an activity promotes a purpose of the
Colegio, dissenters may be compelled to subsidize it. The
problem, in the district court’s view, is that the Puerto Rico
Supreme Court has defined too broadly the “purposes and
ends” that justify mandatory financial support. The court in
particular rejected two purposes articulated by the Puerto
Rico court in support of the integrated bar: “*‘the creation of a
strongly pluralistic society,’’” Schneider, Official Translation,
slip op. at 13 (quoting Schneider, 112 D.P.R. at 549) and
“contribut[ing] to the betterment of the administration of jus-
tice,” id. at 18.
The district court’s concern was that almost any activity
could be said to advance one or both of these interests, and
that dissenting lawyers therefore would be compelled to ac-
cept the Colegio’s publicly expressed viewpoint as representing
them on a vast number of sensitive issues. “Accepting these
standards as the guides to determine permissible bar activity,”
the court stated, “would be tantamount to a complete abdica-
tion of the court’s duty to protect dissenting attorneys’ First
Amendment rights.” 682 F.Supp. at 683.
The district court therefore articulated its own list of “per-
missible purposes” for which financial support may be com-
pelled. These purposes, which the court acknowledged may
not be exhaustive, all revolve around the role of the lawyer as
lawyer, rather than relying on the lawyer's more generic role
as an informed and perhaps influential member of a complex
society. The four areas are: monitoring attorney discipline, en-
suring attorney competence, increasing the availability of
legal services and improving court operations. Activities that
promote one or more of these purposes, and which therefore
may be funded by mandator’ dues and fees, could include
continuing legal education programs, legal aid services, public
education on substantive areas of the law (e.g., landlord-ten-
ant) that would help citizens recognize and enforce their legal
A-10
rights, and public commentary on such matters as rules of
evidence and attorney advertising.®
b. Procedures. The district court found procedural prob-
lems with the 15% escrow amount and with the manner of fil-
ing objections.
The escrow system is inadequate, the district court held,
because the 1986 Rule fails to require a detailed accounting
showing how the Colegio spends its funds, and how it calcu-
lated the 15% setaside. The court relied on Hudson in holding
that the Colegio each year must precisely calculate the escrow
percentage based on its projected budget and its estimate of ex-
- _ penditures to be made for objectionable purposes. 682 F.Supp.
at 687-88. It held that the Colegio not only must explain the
basis for the escrow amount, but also must justify the entire
amount to be collected. The court further heid that the
Colegio must include a “buffer” in the escrow percentage to
ensure that, if the impermissible expenditures exceed the
amounts budgeted for them, the funds required to be returned
to dissenting members do not exceed the escrowed amount.
The other procedural problem noted by the district court is
the requirement that dissenters file objections to specific activ-
ities in order to receive a refund.’ The court held that, under
® In fact, the district court identified a fifth category of permissible expen-
ditures — those without expressive content that benefit all members equally.
682 F.Supp. at 685. The Colegio, for example, provides life insurance for its
members. Because these kinds of items do not infringe on members’ First
Amendment rights in any significant way, if at all, the court felt that they
need not be strictly scrutinized. Id., citing El’is v. Railway Clerks, 466 U.S.
435, 456, 104 S.Ct. 1883, 1896, 80 L.Ed.2d 428 (1984).
’ Although the remedy provides for a “general objection” to be filed at the
beginning of the dues year, or at any time thereafter, the district court
viewed the filing of a general objection merely as a “notice of the right to ob-
ject,” with no refund being made until the Review Board adjudicates specific
objections. See Schneider, Official Translation, slip op. at 22 (§ C(3)(e)) and
Regulations at Articles 11 and 13, App. II at 337, 340
At oral argument, defendants claimed that once any type of objection is
made — general or specific — the independent review panel must review all
Colegio activities and expenditures in order to determine which were objec
tionable. Those making general objections would receive a full refund for all
4
A-11
) Abood, a dissenter may not be required to object specifically to
an activity because this “‘would confront an individual .. .
with the dilemma of relinquishing either his right to withhold
his suppoFfOf ideological causes to which he objects or his free-
dom to maintain his own beliefs without public disclosure.’”
682 F.Supp. at 689 (quoting Abood, 431 U.S. at 241, 97 S.Ct.
at 1802).
2. State of the Record. The district court unquestionably
was bothered by the state of the record before it. Despite re-
peated invitations, defendants failed to present evidence con-
| cerning the extent of the Colegio’s non-ideological activities.
Instead, they urged the court to take judicial notice of the
lengthy list of law-related activities conducted by the Colegio
that was contained in the 1986 opinion of the Supreme Court
of Puerto Rico. See Schneider, 682 F.Supp. at 692-94 (Appen-
dix A). See also Schneider, Official Translation, slip op. at
25-43 (Appendix listing activities) .* That court had found that
the Colegio’s ideological activities were de minimis. Jd. at 13.
In contrast to the lack of evidence regarding non-ideological
activities, the district court received substantial evidence of
the partisan political activities undertaken by the Colegio. See
682 F.Supp. at 679-681. No party, however, provided the
court with quantitative or comparative data showing what
percentage of Colegio activities typically are devoted to each
category. Accordingly, the court felt obliged to conclude “that
the ideological activities of the Colegio constitute a large and
objectionable activities, whether or not there had been a .pecific objec-
tion.
We note, however, that neither the 1986 Rule nor the regulations adopted
to implement it include a provision for refunds in the absence of specific
objections. Thus, on their face, the Rule and regulations seem to operate as
the district court described.
* At oral argument, the attorney for defendant Colegio stated that numer-
ous documents, many of which had been generated for the state court pro-
ceeding that led to creation of the 1986 Rule, had been offered to the district
court but were never admitted into evidence. We obviously do not know the
nature of the information coatained in those materials, and we have no basis
for questioning the district court’s apparent conclusion that the offered docu-
ments would not have resolved its questions concerning the Rule.
————--,tt
A-12
inseparable proportion of the Colegio’s total activities.” 682
F.Supp. at 681.°
Despite the problems it found, the district court stated its
belief that the Colegio could devise a lawful procedure incor-
porating most of the features of the 1986 Rule. 682 F.Supp. at
691. In the absence of appropriate modifications, however,
the court held that the Colegio either must cease all ideological
activities not germane to its core purposes or it may not compel
membership. So long as the status quo remained, defendants
were enjoined from taking any action against any lawyer for
failing to pay fees to the Colegio.
Il. Jurisdiction and Appealability
Before delving into our own discussion of the Colegio man-
datory membership system, we briefly address the parties’
various contentions that the case is not properly before us. The
defendants claim that principles of federalism, res judicata
and collateral estoppel bar our review. Plaintiffs argue that
defendants failed to perfect their appeals because of untimely
and incorrect filings. We reject all of these claims.
[1] Jurisdiction and preclusion. It is well-established that
lower federal courts have no jurisdiction to hear appeals from
state court decisions, even if the state judgment is challenged
as unconstitutional. Review of state decisions may be obtained
only in the United States Supreme Court. See D.C. Court of
* The district court observed that the apparent factual inconsistency be
tween its findings of “pervasive and continuous’ ideologica
Colegio, 682 F.Supp. at 678; 565 F.Supp. as 965. and
court’s finding that such activities were de minimis was at
in part, to a different conception of what are ideolog
F.Supp. at 678 n.3. wv
The court also suggested that the Commonwealth Suprem»
ings were inconsistent with the Colegio’s stipulation “that act
nature to those undertaken by the Colegio prior to 198) «
district court in its 1983 opinion, 565 F.Supp. at 966-71 ha
682 F.Supp. at 678 & n.3. We note, however, that the Coleg at
acknowledged only that certain types of activities have continued. and
that those activities constituted a substantial portion of all Coleg
A-13
Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311,
75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S.
413, 416, 44. S.Ct. 149, 150, 68 L.Ed. 362 (1923). See also 28
U.S.C. § 1257. In Feldman, the Supreme Court considered the
so-called Rooker doctrine specifically in the context of attorney
challenges to rules and regulations governing the bar, in that
instance relating to bar admission. The Court carefully distin-
guished between “general challenges to state bar rules, pro-
mulgated by state courts in nonjudicial proceedings” — for
which there is jurisdiction in the lower federal courts — and
“challenges to state-court decisions in particular cases arising
out of judicial proceedings,” 460 U.S. at 486, 103 S.Ct. at 1317
— for which there is not.
Defendants claim that the Rooker doctrine is triggered in
this case because plaintiffs are, in effect, attempting to appeal
the Puerto Rico Supreme Court’s decisions in the Schneider
case. According to defendants, the 1986 Rule was the particu-
lar judicial remedy ordered in the original Commonwealth
Schneider case, and the district court therefore had no juris-
diction to consider its validity.
We disagree, primarily for the reasons identified by the dis-
trict court. 670 F.Supp. 1098, 1100-1103. The fate of attorneys
Schneider and Ramos — the particular judicial decision made
in the Commonwealth court — is not at issue here. Plaintiffs
challenge not the outcome of that specific case, but the general
Colegio system of mandatory bar membership, as defined by
various statutory provisions and the 1986 Rule. Although the
motivation for the 1986 Rule originated with the Schneider-
Ramos case, we are persuaded that the Supreme Court in-
voked its inherent powers over the bar to go beyond their in-
dividual complaints to accomplish needed bar reform. See
Romany, 742 F.2d at 34 n.3, 40 & 42 (Puerto Rico Supreme
Court has “unique latitude” to regulate the bar). That the
court chose to combine its rule-making with its adjudication in
the form of a single opinion does not detract from the non-
judicial nature of the Rule. See Feldman, 460 U.S. at 482, 103
A-14
S.Ct. at 1314 (“‘[T]he form of the proceeding is not signifi-
cant. It is the nature and effect which is controlling.’’’)
(quoting In re Summers, 325 U.S. 561, 567, 65 S.Ct. 1307,
131], 89 L.Ed. 1795 (1945)). See also Zimmerman v. Griev-
ance Com. of Fifth Jud. Dist., 726 F.2d 85, 86 (2d Cir. 1984)
(referring to the possibility of a combined adjudication and
rulemaking in single opinion); Razatos v. Colorado Supreme
Court, 746 F.2d 1429, 1433 (10th Cir. 1984) (finding jurisdic-
tion after noting that “(t]he distinction is often difficult to
draw” between “general challenges to state bar rules as pro-
mulgated and challenges to state court decisions in particular
cases.’’)
Moreover, a contrary conclusion on the nature of the 1986
Rule would have little impact on this litigation because only
two of the plaintiffs were parties in the state court; thus, even
if jurisdiction were improper as to them, the case would con-
tinue on behalf of the remaining plaintiffs. See In re Justices of
the Supreme Court of Puerto Rico, 695 F.2d 17, 26 (lst Cir.
1982) .'°
'© Defendant Colegio claims that, if the 1986 Rule was the product of a
regulatory rather than an adjudicative process, then plaintiffs should have
amended their complaint to seek review of an administrative act and the dis-
trict court should have reviewed the rule under the substantial evidence test
that is used for agency decisionmaking. This argument is without merit. The
district court had no jurisdiction to conduct an administrative review of the
1986 Rule. It considered the Rule’s content as part of plaintiff's claim that the
Colegio mandatory membership system violates the First Amendment. The
question before the district court was not whether there was substantial
evidence to support the Rule, but whether the Rule modifies the compulsory
Colegio system specified by statute so that that system meets constitutional
requirements.
The Colegio also argues that the Supreme Court Justices should have been
brought in as parties if the validity of a “rule” were at stake. Although the
Justices originally were full defendants and remained as nominal parties with
respect to the stamp claims, we ordered dismissal of the claims against the
Justices in 1982 “insofar as they involve Puerto Rico’s system of compulsory
bar membership and compulsory payment of bar dues.” See In re Justices,
695 F.2d at 20-25, 27. At that time, the compulsory membership and dues
claims involved only the statutes creating and regulating the Colegio. The
Colegio is correct that the Justices are now appropriate parties in the dues
A-15
[2] As for defendants’ invocation of res judicata and col-
lateral estoppel as bars to this action, we note that the district
court first rejected these claims in 1982, and that that decision
was not challenged in the subsequent appeal to this court. See
Romany, 742 F.2d at 37 n.6. Nothing that has occurred either
in the Puerto Rico Supreme Court or the district court since
that time convinces us that we should now open up that issue
for full review. Moreover, unlike jurisdiction, preclusion is a
matter subject to some flexibility in application. See Berrios
Rivers v. British Ropes, Ltd. , 575 F.2d 966, 970 (1st Cir. 1978)
(Puerto Rico courts have recognized that “in certain cases, the
policies of res judicata are not well served by literal applica-
tion of the procedural rules of the courts.”’) Accordingly, with-
out further analysis, we choose to treat the district court’s 1982
ruling on preclusion as establishing the law of the case. See 18
C. Wright, A. Miller & E. Cooper, Federal Practice and Pro-
cedure § 4478, at 801 (1981) (if a “matter is omitted from one
appeal ... it may be held foreclosed on a later appeal to the
same court as a matter of law of the case’’).!!
claim because of their promulgation of the 1986 Rule. Jd. at 23. We fail to
see, however, how this fact affects the validity of either the district court's
judgment or our own. The Colegio and Secretaries have defended the 1986
Rule on the merits, and the Colegio presumably has the ability to ensure that
the Rule is refined in the ways required by our opinions. If not, plaintiffs’
rights will be effectively protected by the district « court's injunction against
the Colegio and the Secretaries.
'' As with the Rooker doctrine, res judicata and collateral estoppel would
not, in any event, apply to plaintiffs Romany, Souss and Oreste Ramos Diaz
because they were not parties on the merits in the Commonwealth litigation.
Although defendants attempt to characterize them as having withdrawn
from the Commonwealth case, and the Supreme Court in its 1986 ruling
refers to a motion on their behalf “to be relieved from further participation in
the case,” Schneider, Official Translation, slip op. at 5, we fail to see how
they were parties in the first place.
In addition, the rulemaking aspects of the Puerto Rico case, including the
Supreme Court's factfinding on the nature and extent of the Colegio’s “objec-
tionable” activities, do not implicate preclusion principles because they were
not “judicial proceedings” entitled to full faith and credit. See 28 U.S.C.
§ 1738.
Thus, the potential scope of preclusion in this case is quite narrow, and
even had defendants preserved and prevailed with this defense against plain-
A-16
[3] Appealability. Plaintiffs contend that both the Colegio
and the Secretaries filed untimely appeals from the wrong
judgments. Appeals must be filed “within 30 days of the judg-
ment or order appealed from,” Fed.R.App.P. 4(a)(i), and
courts of appeals have jurisdiction only over “[f]inal
decisions,” 28 U.S.C. § 1291. Before addressing the merits of
plaintiffs’ argument, we review the procedural chronology.
The district court issued a full opinion on the merits on
March 3, 1988, but delayed entering final judgment until after
the defendants had an opportunity to modify the remedy to
bring it into compliance with the court’s guidelines. The de-
fendants made no changes, and the court.issued an opinion on
May 27 entering judgment in accordance with the March 3
decision. That May 27 decision was formally entered on the
docket on either May 31 or June 1. On June 13, the Colegio
filed a motion requesting additional findings of fact, which
was denied by the district court on July 15. Both the Colegio
and Secretaries filed their appeals on August 10.
The Colegio appealed from the court’s March 3 order and
from the July 15 denial of its motion for additional findings of
fact. The Secretaries’ notice of appeal sought review of a June
17 judgment.
It is worth noting at the outset of our discussion that if form
alone were to govern, we would have to dismiss both appeals
of the merits. The Secretaries appealed from a nonexistent
judgment on June 17, while the Colegio appealed from a non-
final judgment — the one on March 3. It would disserve the
interests of justice, however, if we dismissed the appeals on
these grounds. Indeed, the Secretaries apparently made no
more than a clerical mistake in referring to a June 17 judg-
ment, which should not bar appellate review. See Foman v.
Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222
(1962). The Colegio, while committing more than clerical
error, undoubtedly appealed from the March 3 decision be-
tiffs Schneider and Ramos, our opinion would have differed only with
respect to their individual entitlements to damages.
A-17
cause it contained the district court’s full analysis. With regard
to both appellants, there is no doubt as to the nature of their
appeals, and avoiding decision on the merits would be con-
trary to the spirit of the Federal Rules of Civil Procedure. Id.
As for timing, we accept the district court’s conclusion that
the Colegio’s motion for additional findings of fact was
timely,'? extending the time for filing an appeal of the court’s
judgment until 30 days following the court’s decision on that
motion. See Fed.R.App.P. 4(a)(4) (timely motion by any party
extends time for appeal). Both the Coiegio and the Secretaries
met that extended deadline. ,
Ill. Discussion
We begin by stating that, in most significant respects, we
agree with the district court’s legal conclusions and its disposi-
tion of this case. We nevertheless write at some length so that
we may respond to arguments made by both plaintiffs and de-
fendants,'* and so that, in some instances, we may elaborate
on the district court’s discussion in ways that we hope will
prove helpful to defendants in administering a constitutional
procedure for protecting dissenters’ rights.
Our review of the Colegio system requires us to answer
three primary questions: what activities may be funded with
compulsory dues? does the 1986 Rule adequately protect the
right of dissenters not to contribute to other activities? and
'2 Plaintiffs argue at length about whether the official entry of judgment
for the May 27 decision occurred on May 31 or June 1. Regardless of the cor-
rect date, we would not reject as untimely an appeal that is dependent on the
later date because of the legitimate confusion over which date the judgment
was entered.
'? Both plaintiffs and defendants filed appeals in this case. Defendants
claim that the district court erred in concluding that the 1986 Rule fails to
meet constitutional requirements. Plaintiffs claim that the court erred in
finding that they do not have standing to challenge the government's involve-
ment in collecting Colegio stamp fees, in awarding them only nominal
damages and in approving certain aspects of the 1986 Rule.
A-18
what steps must defendants take to fulfill their constitutional
obligations to dissenters?'* We address each of them in turn.
A. What activities may be funded with compulsory
dues?
The district court’s view that an integrated bar may use
compulsory dues only for activities directly related to the law-
yvering profession and the operation of the judicial system ac-
cords with the Supreme Court’s subsequent pronouncements
in Keller. See supra p. 624. To be sure, Puerto Rico’s legisla-
ture and Supreme Court evidently envision purposes for the
Colegio extending far beyond a “professional advisor” role. See
Keller, 110 S.Ct. at 2235; Schneider, Official Translation, slip
op. at 13. But even if it persuasively could be argued that law-
yers in Puerto Rico play a distinctive role in creatingge’pluralis-
tic society, and that collective political action by lawyers is
therefore uniquely central to the mission of the Puerto Rico
bar, compulsory funding of non-legal ideological activities
would impose too great a burden on the First Amendment
rights of individual members to be constitutionally acceptable.
Lawyers who wish collectively to advocate certain political
views can band together in a voluntary association, without
coercing those with different views to join their ranks.
The Supreme Court cases upholding compelled membership
rest on an implicit assumption that “‘the cause which justified
bringing the group together,’” see Abood, 431 U.S. at 223, 97
S.Ct. at 1793 (quoting Machinists v. Street, 367 U.S. 740, 778,
81 S.Ct. 1784, 1805, 6 L.Ed.2d 1141 (1961) (Douglas, J., con-
curring)), would be sufficiently narrow that dissenting em-
'* Throughout the discussion section, our assumption is that defendants
would choose to modify the 1986 Rule so that it meets constitutional require-
ments rather than to design a completely new procedure for protecting dis-
senters’ rights. Defendants are, of course, free to tackle such a project if so in-
clined. See Keller, 110 S.Ct. at 2237-38 (leaving open the possibility that pro-
cedures different from those described in Hudson could satisfy an integrated
bar's obligation to dissenters).
A-19
ployees would be forced to associate against their will in only a
limited way. As the district court recognized, if objecting
members could be required to subsidize any activity that pro-
moted the creation of a strongly pluralistic society, the limita-
tion on compulsory support carved out in Abood would be
meaningless.
[4] Thus, the district court correctly set the boundaries for
the Colegio’s use of compulsory dues. The court also described
various activities that fall within those boundaries, see supra
p. 626, and we endorse its list.'° The district court’s discussion
of activities, however, dwelled primarily on bar programs that
we think fall at an extreme end of the spectrum, and for which
there would be little dispute that compulsory financing would
be appropriate. We therefore think it worth adding to its cata-
log both some general principles and some specific examples to
assist in categorizing activities as either appropriate or inap-
propriate for compulsory funding.
Before we begin that list, however, it is necessary to review
the United States Supreme Court's rather sketchy references to
the propriety of using compulsory dues for “nongermane, non-
ideological expenditures,” Hudson, 475 U.S. at 304 n.13, 106
S.Ct. at 1074 n.13. These would include, for example, the
costs of members’ life insurance or purely social activities. In
Hudson, the most recent compulsory union dues case, the
Court specifically refrained from deciding whether “the cate-
gory of impermissible expenditures included al! those that
were not germane to collective bargaining, even if they might
not be characterized as ‘political or ideological,’” id. at 299,
304 n.13, 106 S.Ct. at 1072, 1074 n.13.'*
'5 We note that most of the activities listed as non-objectionable by the
Puerto Rico Supreme Court, and restated in regulations issued by the Review
Board, see App. II at 331-334, are within the court's acceptable range. These
are described by the regulations as “[a]ctivities closest related to the practice
of law and the administration of justice.” Jd. at 331.
'© A majority of the Court of Appeals in Hudson had addressed that issue,
and concluded that compulsory dues could not be used for such purposes.”
See 743 F.2d 1187, 1194 (7th Cir. 1984). The Supreme Court saw no need to
reach the question, however, because the plaintiffs’ challenge was to the
ooo —————————————eeeeee
A-20
In an earlier case, however, the Court had considered
whether expenditures for union social activities could be fi-
4 nanced with compulsory dues. See Ellis, 466 U.S. at 449-50,
456, 104 S.Ct. at 1893, 1896. After concluding that the Rail-
way Labor Act permitted the union to charge all employees
for such expenses, the Court only briefly addressed the First
Amendment question:
Petitioners do not explicitly contend that union social
activities implicate serious First Amendment interests.
We need not determine whether contributing money to
such affairs is an act triggering First Amendment protec-
tion. To the extent it is, the communicative content is not
inherent in the act, but stems from the union’s involve-
ment in it. The objection is that these are union social
hours. Therefore, the fact that the employee is forced to
contribute does not increase the infringement of his First
Amendment rights already resulting from the compelled
contribution to the union. Petitioners may feel that their
money is not being well-spent, but that does not mean
they have a First Amendment complaint.'’
466 U.S. at 456, 104 S.Ct. at 1896 (emphasis in original).
Despite the Supreme Court’s reluctance in Hudson to con-
front the “constitutional nongermaneness question,” we think
the quoted discussion from Ellis provides the appropriate an-
alysis for resolving the issue. Moreover, not only is the First
Amendment not a factor, but “[t]he very nature of the free-
rider problem and the governmental interest in overcoming it
procedure used to protect dissenters’ rights and not to particular expen-
ditures. The Court felt that the procedural requirements would be the same
regardless of the outcome of the “constitutional nengermaneness question.”
475 U.S. at 304 n.13, 106 S.Ct. at 1074 0.13.
'? Although the plaintiffs in Ellis also challenged mandatory funding of
the union's death benefits program, the Court found it unnecessary to reach
that issue because the union was no longer the exclusive bargaining agent for
the plaintiffs and so they no longer were involved in the death benefits
system
A-21
require that the union have a certain flexibility in its use of
compelled funds.” Ellis, 466 U.S. at 456, 104 S.Ct. at 1896.
We therefore conclude, as did the district court, that activities
incidental to the operation of an association — such as social
events and the provision of insurance to members — may be fi-
nanced with mandatory fees.
[5] 1. Political activities, including lobbying, may be
funded from comptilsory dnes so long as the target issues are
narrowly limited to regulating the legal profession or improv-
ing the quality of legal service available to the residents of
Puerto Rico. See Keller, 110 S.Ct. at 2236-37. Thus, for exam-
ple, the Colegio could lobby in favor of budget appropriations
for new judicial positions or increased salaries for government
attorneys, or against statutory limitations on attorney adver-
tising or requirements for the certification of legal specialists.
Cf. Gibson v. The Florida Bar, 798 F.2d 1564, 1569 & n.4
Lith Cir. 1986
It w | not be permissible, however, to use mandatory
es | » lobbying if the Colegio’s position rested upon
urtisa tical views rather than on lawyerly concerns. For
tw | be appropriate for the Colegio gen
g attorney advertising, it may not use
e idvoeate restrictions only on advertising
f (or opposed to) family planning
ics. It likewise would be impermissi-
_
se mandatory dues to lobby on any issue
y e political status of Puerto Rico, even if
arguably related to the legal profession or the quality of legal
SerTVices
(6) 2. Among the activities that could not properly be
funded with mandatory dues would be lobbying on controver-
sial bills to change the law in ways not directly linked to the
legal profession or the judicial system. For example, the bar
could not use dissenting members’ funds to promote a system of
pro-life amendment to the Commonwealth constitution or gen-
erate support for a death penalty. See Keller, 110 S.Ct. at 2237.
A-22
We see no problem, however, in the Colegid’s participation
in efforts to amend technical, non-ideological aspects of sub-
stantive law. For example, the Wisconsin state bar's 1975 leg-
islative program included advocacy on two bills that would
appear to have engendered no controversy: one making it clear
that land contracts enjoy the same exemption from the Wis-
consin Consumer Act as do first lien mortgages, and the other
simplifying condominium transactions by abolishing a re-
quirement that floor plans be recorded. See T. Schneyer, “The
Incoherence of the Unified Bar Concept: Generalizing from
the Wisconsin Case,” 1983 Am.B.Found.Res.J. 1, 31 (1983)
(hereinafter “Unified Bar Concept”). Another example falling
into this category would be a bill to allow notaries to use either
a stamp or a seal on documents. All of these measures appear
politically noncontroversial and designed merely to “‘im-
prov[e] the quality of the legal service available to the people
of the [Cemmonwealth],’” Keller, 110 S.Ct. at 2236 (quoting
Lathrop, 367 U.S. at 843, 81 S.Ct. at 1838).
[7] 3. Among the Colegio’s activities that clearly fall out-
side the narrow categories for which financial sapport may be
compelled are the following Colegio-sponsored committees:
the Committee for the Study of the Constitutional Develop-
ment of Puerto Rico from 1977 to 1984, which, among other
business, has published a report on the “Procedural Require-
ments for Decolonization of the United Nations organization”'*;
'* The Puerto Rico Supreme Court described the work of this committee as
follows:
The Committee for the Study of the Constitutional Development is
constituted by attorneys from all political stands. Among the studies it
has conducted, the most important are: police corruption as a threat to
the democratic system, the electorate’s direct means of intervention in
the political process. And the third one is the result of a series of reports
on the Puerto Rican status issue. One of the reports, which was unani-
mously approved by the members of the Committee, recommends
some minimum requirements that should be guaranteed under any
status alternative. Based on these reports, the President of the Bar
Association has appeared before the United Nations to present the
recommendations of the Committee.
Schneider, Official Translation, slip op. at 36 (citations omitted).
A-23
the Electoral Process Committee, which was created “to en-
hance the level of political debate in our country, to enforce
compliance with the laws governing the voting process and to
frame a code of ethics to regulate public debate among polit-
ical candidates”; the Special Committee on Nuclear Arma-
ment and the Nuclear Arms Ban Treaty in Latin America, and
the Committee for the Study of the Proposed Territorial
Demarcation of the San Juan and Rio Piedras Delegations. See
Schneider, Official Translation, slip op. at 48-49; 53; 54.
[8] 4. In many instances, it is likely that activities that
may be subsidized with mandatory dues will be combined
with those that may not. Consider, for example, a hypothet-
ical annual meeting where business matters of direct concern
to the regulation of the legal profession will be discussed, but
where the chaplain opens with a long prayer for the health of
Fidel Castro, and the featured speaker is a prominent Sanda-
nista. Even if the business meeting takes two hours, and the
prayer and speech together take only 35 minutes, we think it
likely that the atmosphere would have become so partisan that
the proportionate cost of the whole meeting should be de-
ducted from a dissenter’s dues. In other words, where the per-
missible and impermissible are intertwined beyond separa-
tion, the objector should be entitled to a full rebate for the cost
of the function.
[9] The district court made a similar observation with re-
spect to the Bar's publications, holding that “[eJach publica-
tion stands or falls ... as an indivisible entity, depending on
its editorial policy.” 682 F.Supp. at 686. If a magazine is de-
voted to educational articles about the legal profession or the
quality of the legal services available in the Commonwealth, it
may be funded by compulsory dues. A magazine that pub-
lishes markedly political and ideological material may not rely
on that source of funding (unless, perhaps, the magazine pub-
lishes a broad spectrum of counterbalancing views).
This list, obvious!y, is not intended to be exhaustive, but it
hopefully will provide some context within which to evaluate
other activities.
A-24
B. Does the 1986 rule adequately protect the right of
dissenters NOT to contribute to other activities?
It is not disputed that the Colegio regularly has engaged in
activities that may not be funded with compulsory dues. As-
suming that it continues to do so in the future; it must ensure
that dissenters’ dues are used only for activities germane to the
bar’s core functions or for other pursuits incidental to the
operation of a bar association. The district court concluded
that the procedures specified in the 1986 Rule are inadequate
to accomplish that task. We agree.
Before turning to the specific procedural deficiencies of the
Rule, however, we note our previous observation that there is
an argument to be made that “the Colegio’s penchant for ide-
ological contention is so pervasive and riremitting ... that
Puerto Rico cannot constitutionally force dissenters to join,”
Romany, 742 F.2d at 40-41. Although the present record
leaves that argument unresolved, we are not yet prepared to
hold that a rebate and escrow system to protect dissenters is
necessarily unworkable. The district court believed that such a
system could work and it is clear that the Colegio does engage
in some activities that serve the core purposes of a bar associa-
tion identified by the Supreme Court in Keller. Thus, while
leaving open the possibility that no such system would suffice,
our comments on the Rule are based on the assumption that it
could be modified to meet constitutional requirements. But see
L. Tribe, American Constitutional Law § 12-4 at 805 n.5 (2d
ed. 1988) (in the case of unions, it may be preferable to require
ideological activities unrelated to collective bargaining to be
financed from voluntary contributions) .'®
[10] Our view of the Rule’s procedural problems coincides
with that of the district court, and we therefore shall not re-
visit at length matters that that court already has covered well.
'* We also leave open, as did the Supreme Court in Keller, see 110 S.Ct. at
2238, the alternate possibility that the Colegio should be enjoined perma-
nently from using its name to advance political or ideological causes beyond
those for which mandatory financing is permissible.
A-25
See Schneider, 682 F.Supp. at 687-89. We emphasize,
however, the Rule's two biggest procedural shortcomings: the
failure to just/fy and support adequately an escrow percentage
limited to 15% and the need for objections to specific activities
as a prerequisite for refunds.
With respect to the escrow percentage, neither the Rule nor
the record as a whole offers support for the 15% figure or, in-
deed, for any specific allocation of the amount of resources
devoted to activities either entitled or not entitled to manda-
tory financing. Fifteen percent would seem, on its face, to be a
small proportion. It is the Colegio’s obligation at the outset of
a dues year to categorize its activities so that an escrow amount
can be based on actual anticipated expenditures for non-core
activities. Although “absolute precision” in predicting plans
and expenses is not required, see Hudson, 475 U.S. at 307
n.18, 106 S.Ct. at 1076 n.18, it is insufficient to classify activ-
ities only after a member specifically objects to financing them
with mandatory dues. This would place too great a burden on
members to monitor Colegio activities. See Abood, 431 U.S. at
241, 97 S.Ct. at 1802.
[11] In addition, we reject the Colegio’s challenge to the
district court’s imposition of a “buffer” allocation in the es-
crow amount, see 682 F.Supp. at 688-89. Because “absolute
precision” in predicting the upcoming year’s plans is unlikely,
such a cushion will serve to avoid, or minimize, any First
Amendment infringement resulting from a higher-than-bud-
geted expense for non-core ideological activities. Although the
Colegio’s right to use its funds freely will be compromised if
the cushion turns out to be unnecessary, we think it appropri-
ate to err on the side of protecting the First Amendment rights
of the Colegio’s compelled members. If, over time, it turns out
that the Colegio accurately predicts the nature of its annual
expenditures, it will be free to seek relief from the buffer re-
quirement. At this time, however, we see no basis on which to
second-guess the judgment that such a cushion is appropriate.
A-26
The fact that the Supreme Court has not explicitly required
such an amount in the past does not render it invalid.”°
[12] The district court also ably outlined the measures
necessary to bring the Colegio into conformance with Supreme
Court requirements concerning the method for objecting to
expenditures. 682 F.Supp. at 689. As the district court recog-
nized, a primary feature of a constitutional system is that dis-
senters be able to trigger refunds by means of general objec-
tions so that they need not make public their views on specific
issues. See id. (quoting Abood, 431 U.S. at 241, 97 S.Ct. at
1802).*' Dissenters also may not be required to explain the
basis for particular objections beyond detailing why they view
a dispntet? Sterettt to be outside the Colegio’s core functions.
See Regulations § 12.1, App. II at 338 (“The objection shall be
raised in a brief document briefly listing the reasons on which
the objection is based.’’)?*
[13] We, like the district court, decline to invalidate the
use of former Justices of the Puerto Rico Supreme Court as
members of the three-member Review Board that will deter-
* Moreover, such a cushion is not unprecedented. The Chicago Teachers
Union rounded up its estimate for expenditures unrelated to collective bar-
gaining and contract administration in establishing a dissenters’ rebate to
provide a cushion to cover inadvertent errors. See Hudson, 475 U.S. at 295,
106 S.Ct. at 1070.
*! As noted above, ii may be that defendants intend that the procedure
operate in this fashion, in other words, that a general objection lodged at the
beginning of the dues year automatically will entitle that dissenter to a full
rebate for the amount spent on all activities unconnected with the Colegio’s
* core purposes. See supra n.7.
** Thus, one way for an objection procedure to work would be for the
Colegio to provide members at the beginning of the dues year with a pro-
posed budget that classifies activities as appropriate or inappropriate for
mandatory financing. Based on that classification, the budget would include
an escrow percentage for dissenters’ dues. Members who filed a general ob-
jection at the beginning of the year would trigger an escrow contribution on
cheir behalf and ultimately would be entitled to a rebate for all activities
listed as inappropriate for mandatory financing. In addition, members must
be able to challenge the placement of particular activities within the “non-
objectionable” category Moreover, the Colegio has the obligation to adjust
the refund amount during the year based on actual expenditures.
A-27
mine which activities may be funded with compulsory dues.
Plaintiffs challenge the impartiality of the Justices because of
their participation in the Supreme Court’s decision upholding
the integrated bar and setting a wide scope for the bar’s core
functions. We agree fully with the district court's judgment
that a panel whose members include former Supreme Court
Justices “meets the requirements of an ‘impartial decision-
maker,’ at least facially until appropriate evidence is presented
to the contrary.” 682 F.Supp. at 689.
C. What steps must defendants take to fulfill their con-
stitutional obligations to dissenters?
[14] As a result of the deficiencies it found with the
Colegio’s present method of operation, the district court en-
joined the Puerto Rico bar association from compelling mem-
bership until it either ceased all ideological activities not ger-
mane to its core purposes or devised an adequate system to
protect dissenters’ rights. We find no abuse of discretion in the
court’s decision to impose this injunction, but for various rea-
sons believe that its implementation should be delayed for six
months while defendants work to modify their Rule. If, at the
end of six months, defendants have failed to submit to the dis-
trict court a rule that resolves the constitutional problems
identified in its opinion and our own, and if no extension of
time has been granted for cause by the district court, the in-
junction will take effect. During this interim period, 100% of
dissenters’ dues should be held in escrow, to be refunded in full
if no adequate procedure is developed to protect their rights.
We have the power, under our supervisory authority, to
defer effectuation of the district court’s judgment. See 28
U.S.C. § 2106; City of Newport v. Fact Concerts, Inc., 453
U.S. 247, 257 and nn. 15, 16, 101 S.Ct. 2748, 2754 and nn. 15,
16, 69 L.Ed.2d 616 (1981). See also Monmouth County Cor-
rectional Inst. Inmates v. Lanzaro, 834 F.2d 328, 333 n.10 (3d
Cir. 1987) (revising district court order granting preliminary
A-28
injunctive relief). Our reasons for doing so in this case are
these:
First, as noted above, we think there remains a good possi-
bility that the Colegio can operate constitutionally. The
Supreme Court of Puerto Rico has listed a number of useful
and important functions performed by the Colegio that are
directly linked to the regulation of the legal profession and im-
proving legal services, and it appears that an accounting sys-
tem now exists for determining the direct and indirect cost of
any Colegio activity, see 682 F.Supp. at 688 n.14. Thus, we
think it appropriate to act on the assumption, shared by the
district court, that the Colegio will be able to modify its ruleto
comply with Hudson.
Second, the defendants’ interest in maintaining an inte-
grated bar is sufficiently weighty that we should hesitate
before halting the system completely. It seems more appro-
priate to allow the Colegio to continue functioning, at least
temporarily, with the compelled dues of members who do not
object to its activities. :
Third, we think that the United States Supreme Court’s re-
cent decision on the integrated bar is likely to spur action that
defendants previously may have resisted while pursuing their
appeals. Before Keller, it had been nearly three decades since
the Court addressed the integrated bar, in Lathrop, and the
mmentary since that time has questioned the nature and
continuing validity of a mandatory bar. See, e.g., “Unified
Bar Concept,” 1983 Am.B.Found.J., at 67; C. Sorenson, Jr.,
“The Integrated Bar and the Freedom of Nonassociation —
Continuing Siege,” 63 Neb.L.Rev. 30, 31 (1983). Now that
Keller has come down, defendants have an unequivocal need
to change their system to ensure its continued operation.
Fourth, we recognize that changes in the Colegio system are
not easily made because of the various entities involved in
decision-making. The Rule was a creature of the Supreme
Court, but it rests upon a foundation of information that is the
Colegio’s responsibility to maintain. We therefore think it
A-39
appropriate to give defendants a substantial period of time to
work out a constitutional approach to mandatory Colegio
membership.
Finally, a federal court should endeavor to facilitate a
proper objective of state and commonwealth government by
constitutional means; it should, if possible, avoid frustration
caused by the perhaps ill-advised strategies of counsel. Thus,
while we understand the district court’s inclination at this
stage of the proceedings against further indulging the defen-
dants and their lawyers, we think it is worth giving them the
benefits of any doubts one more time.
Accordingly, we envision the following course of events:
[15] — The first task is for the Colegio, or an independent
agent, to perform the verified accounting required by Hudson.
The resulting report should categorize activities as suitable or
unsuitable for mandatory funding, consistent with the criteria
described in Section A above, and the report should list the
cost for each activity. This accounting should enable the Col-
egio to set an amount for the reduction of dues of dissenting
members. This accounting should strive as much as possible to
reflect reality, perhaps relying on the Colegio’s actual expendi-
tures during the last several years as the basis for the projected
allocation. See Hudson, 475 U.S. at 307 n.18, 106 S.Ct. at
1076 n.18. And in close situations, the accounting should favor
the dissenter’s right not to fund programs they find offensive.
— An independent panel (perhaps the Supreme Court or
the Review Board) should review the categories of activities to
determine whether all items to be funded with mandatory
dues are “necessarily or reasonably incurred for the purpose of
regulating the legal profession or ‘improving the quality of the
legal service available to the people of the [Commonwealth].””
Keller, 110 S.Ct. at 2236. The panel may wish to solicit cri-
tiques and proposals from interested parties, such as plaintiffs,
to ensure that the final remedy is as fully developed as possible.
— The objection procedure must be clarified or modified
consistent with the district court’s discussion. See supra pp.
626-27, 613.
RD * ly Sh ae oh
A-30
— The new rule with relevant supporting materials, or
some alternative, should be submitted to the district court for
review within six months or, if a limited extension is granted,
within such later period. The court must be given sufficient
data to enable it to evaluate the categorization of expenses and
any proposed rebate/escrow percentage. This would include,
for example, copies of past Colegio budgets.
— If defendants do not modify the Colegio system within
the required time, the district court’s injunction will go into
effect and the Colegio will be required to operate solely as a
voluntary association until it stops all ideological activities out-
side its core purposes relating to the legal profession.
IV. Stamps
Under Puerto Rico law, lawyers must attach notarial and
forensic stamps issued by the Colegio to many official docu-
ments as a means of authenticating them and as a prerequisite
to filing them in court. See P.R.Laws Ann. tit. 4, §§ 783, 785,
1006, 1038. The stamps are sold at the Commonwealth’s inter-
nal revenue offices by government employees, but all proceeds
are turned over to the Colegio. The Colegio is not charged for
any administrative or processing costs.
The 1986 Rule stated that stamp proceeds could be used to
pay for only the following items: bar members’ life insurance,
legal aid to indigents, legal advice to the community, process-
ing of complaints regarding the conduct of bar members in the
practice of the profession, publication of judicial opinions
“and for any other purpose comprised within the duties and
purposes of the Bar Association.” Schneider, Official Transla-
tion, slip op. at 23. The Rule specified that the funds shall not
be used for “objectionable activities.”
Plaintiffs complain both about the use of their tax monies to
support the Colegio, through the government’s involvement in
selling the stamps, and the use of the stamp fees to fund Cole-
gio activities with which they disagree. We depart in only one
ee
A-31
respect from the district court’s resolution of the stamps
problem.
[16] As that court observed, if an adequate mechanism for
protecting dissenters’ rights is implemented, and no revenues
from the sale of stamps are used to fund activities outside the
Colegio’s proper core functions, no constitutional problem will
remain.” Although there still would be disparity among law-
yers in the amounts paid to the Colegio, based on their need
for Colegio stamps, we see no basis for challenging the Com-
monwealth’s arguably rational judgment to impose a larger
share of the burden of funding core activities on those lawyers
who use the judicial system more frequently.”
The district court believed, however, that if no adequate
method is devised to protect dissenters’ rights with respect to
23 It seems that a proper approach to the budgeting process would be to
deduct, at the outset, the amount of the stamp revenues from the total esti-
mated funds needed by the Colegio for core activities. It would then be pos-
sible to calculate the additional amount needed from dues to fund the re-
mainder of the bar's budget, broken dow” into the amount needed to fund
core activities and the amount needed to fund all other activities. Dissenters
would be entitled to a rebate or dues reduction for the portion of dues
assessed for all non-core activities.
24 It is not the case, as plaintiffs argue, that dissenting attorneys who pur-
chase a large number of stamps will be improperly subsidizing the Colegio’s
non-core activities through their stamp fees. Assuming a constitutional dues
procedure is implemented, the Colegio will be required to specify the cost of
its non-core activities, and those items will be funded only by means of the
portion of mandatory dues that dissenters will not be charged.
Although it is true that any amount raised through stamps will not need to
be raised through dues, this is not the sort of bookkeeping deception rejected
by the Supreme Court in Abood, 431 U.S. at 237 n.35, 97 S.Ct. at 1800 n.35.
The court there was referring to a system in which all members are charged
the same fee but dissenting members’ payments are allocated only to core
purposes while other members’ payments could be used for any purpose. In
those circumstances, where there is no discount for dissenters, dissenters
would pay more than their pro rata share of core expenses. That sort of
disparity differs from the disparity in attorney purchases of Colegio stamps
because the stamp fees paid by all lawyers, dissenting or not, receive iden-
tical treatment. Unless it were shown that, as a rule, dissenting attorneys
used substantially more stamps than non-dissenting ones, there is no dispro-
portionate burden placed on dissenting attorneys for the funding of Colegio
core activities. There is therefore no First Amendment violation
\
A-32
mandatory dues, the stamp requirements, like membership in
the Colegio, must be made voluntary. The court held that re-
stricting the use of stamp revenues to non-objectionable activ-
ities is insufficient as a solution because dissenters through
their stamp purchases would then, in effect, be subsidizing
ideological activities by allowing a larger portion of the volun-
tary dues to be used for them. We disagree. We see no differ-
ence with respect to the stamp proceeds, whether or not the
Colegio can compel membership and dues, provided the
stamp fees are used solely ‘vr proper core activities. In both
circumstances, the Colegio has the same funds available for
objectionable activities — only some portion of the dues of
consenting members. Even if the Colegio chose to use all of the
voluntary dues for objectionable activities, and funded its core
activities solely with stamp revenues, we see no constitutional
problem. The Commonwealth’s decision to fund core bar asso-
ciation activities in that manner would put the core funding
burden not on dissenters but on stamp purchasers. This alloca-
tion of burden does not implicate the First Amendment, and
the Colegio therefore may collect and use the stamp fees for
core activities whether or not it may compel membership.
[17] Ifthe Colegio should be unable to devise a satisfactory
method to protect dissenters’ rights, and thus be required to
change to a voluntary bar, this would affect the stamp issue in
one respect. If Colegio membership is voluntary and associa-
tion benefits therefore do not inure to all lawyers, it would
plainly be inappropriate to use stamp revenues for any activ-
ities that, while not ideological, do not directly serve the core
purposes of regulating the legal profession or improving the
quality of legal services. To charge nonmembers fees to help
pay for members’ life insurance, for example, strikes us — as it
did the district court — as improper. See 682 F.Supp. at 690.
In that event, the Commonwealth would be compelling cer-
tain indivftlyals to help pay for a private benefit system for
other individtals, an arrangement that triggers due process
concerns if not Kirst Amendment ones. We therefore hold that,
A-33
if the Colegio becomes a voluntary association, stamp revenues
may be used to finance only core activities not including “non-
germane, nonideological” ones. Hudson, 475 U.S. at 304,
n.13, 106 S.Ct. at 1074, n.13.
As a final note, if the Colegio is unable to show that stamp
proceeds are, in fact, isolated from its other revenues and allo-
cated only to appropriate activities, it would of course be
barred from requiring stamp fees.*°
With respect to the government’s involvement in the sale of
the stamps, we subscribe to the district court’s view that no
remedy is warranted. If stamp revenues are segregated appro-
priately, the government's assistance in selling the stamps will
not support a First Amendment claim. The government sim-
ply would be involved in collecting funds that are used to pro-
mote the substantial government interests of regulating the
legal profession and improving the quality of legal services
available in the Commonwealth. If the Colegio cannot dem-
onstrate that the use of stamp fees is properly limited, how-
ever. the sale of stamps would be allowed to continue only on a
voluntary basis, and plaintiffs then would lack standing to
challenge the government’s role in the stamp program. As the
district court observed, plaintiffs presumably would choose
not to purchase the stamps, and their complaint therefore
would depend on their status as taxpayers and the use of some
portion of their tax dollar to help the Colegio finance its ide-
ological activities.
In order to establish state taxpayer standing, plaintiffs must
show that the challenged activity involves “a measurable
appropriation” or loss of revenue, and “a direct dollars-and-
cents injury” to themselves, Doremus v. Board of Education,
342 U.S. 429, 434, 72-S.Ct. 394, 397, 96 L.Ed. 475 (1952). See
also, e.g., District of Columbia Common Cause v. District of
Columbia, 858 F.2d 1, 4-5 (D.C. Cir. 1988); Donnelly v.
*° For the six-month interim period, all stamp revenues, like dissenters’
dues, should be placed in escrow. Defendants may, however, ask the district
court to lift this requirement before the dissenters’ remedy is modified upon a
showing that stamp fees are fully segregated and used only for core activities
A-34
Lynch, 691 F.2d 1029, 1030-32 (Ist Cir. 1982), rev'd on other
grounds, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604
(1984). Plaintiffs have’ failed to make such a showing. The
stamps are sold at government offices that exist for another
purpose, and plaintiffs do not allege that additional employees
are hired to handle the stamp business. At best, it might be
argued that there are some incidental expenses incurred by the
government, but this does not constitute the “direct and par-
ticular financial interest” necessary to establish standing.
Doremus, 342 U.S. at 435, 72 S.Ct. at 398.
V. Damages
118) Plaintiffs contend that the district court erred in
awarding each of them only $1 in nominal damages for the
deprivation of their First Amendment rights. The court de-
clined to make a higher award because “‘[t ]he evidence is too
vege for the Court to establish through anything other than
speculation, the amount of damages suffered by these Plain-
tiffs.’ Schneider, 682 F.Supp. at 691 (quoting Schneider, 565
F.Supp. at 979). Plaintiffs acknowledge that there was no
direct proof of damages, but make an emotional appeal for
financial relief in an amount reflecting the seriousness of the
defendants’ First Amendment violation.
We have sympathy for plaintiffs’ position, and recognize the
risk that nominal damages will tend to minimize the serious-
ness of defendants’ violation and plaintiffs’ injury. Neverthe-
less, we are unable to say the district court abused its discre-
tion in making the $1 awards. From all that appears in the
record, plaintiffs have submitted no evidence of the nature
and extent of the harm they have suffered, and they have cited
no precedent imposing on the court the obligation to speculate
on the extent of their injury. In the absence of any proof of
damages, we think the district court acted within its discretion
in declining to award more than a nominal sum. See Memphis
Community School Dist. v. Stachura, 477 U.S. 299, 308 n.11,
A-35
106 S.Ct. 2537, 2543 n.11, 91 L.Ed.2d 249 (1986) (“[Njominal
damages, and not damages based on some undefinable ‘value’
of infringed rights, are the appropriate means of ‘vindicating’
rights whose deprivation has not caused actual, provable in-
jury.”) (citing Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042,
55 L.Ed.2d 252 (1978)). See also id. 477 U.S. at 315-316, 106
S.Ct. at 2547 (Marshall, J., concurring) (quoting Hobson v,
Wilson, 737 F.2d 1, 62 (D.C. Cir. 1984)) (injury to a First
Amendment-protected interest may be compensated with sub-
stantial damages, but “only to the extent that it was ‘reason
ably quantifiable’”’).
V. Conclusion
We summarize our primary holdings
1. The 1986 Rule was the product not ob judicial decision-
making but of Puerto Rico Supreme Court rulemaking, and
the district court therefore had jurisdiction to review its
merits. In addition, our review is barred neither by preclusion
principles nor procedural defaults
2. The C legio may use mandatory dues and fees only for
those expenditures that are “necessarily or reasonably incurred
for the purpose of regulating the legal profession or ‘improving
the quality of the legal service available to the people of the
(Commonwealth].’” Keller, 110 S.Ct. at 2236. It may, in
addition, use such funds to finance activities incidental to the
operation of a bar association, such as social activities and
insurance programs.
3. Activities that may be funded with compulsory dues,
therefore, generally must “revolve around the role of the
lawyer as lawyer, rather than relying on the lawyer's more
generic role as an informed and perhaps influential member of
a complex society,” see supra p. 626. When ideological activ-
ities outside the bar’s core purposes are intertwined beyond
separation with activities within them, dissenters may not be
charged for any portion of the challenged program.
A-36
4. The Colegio system of mandatory membership, as defined
by statute and the 1986 Rule, does not presently meet constitu-
tional standards. It defines too broadly the range of activities
that may be funded with compulsory dues. Its two primary
procedural defects are the failure to support the 15% escrow
amount and the provision, at least on the Rule’s face, that re-
funds are triggered only by objections to specific activities.
5. Defendants shall have six months from the date this judg-
ment becomes final to submit a modified version of its rule, cr
an alternative, to the district court, during which time 100%
of dissenters’ dues must be held in escrow. If, at the end of that
six-month period, defendants have failed to submit to the dis-
trict court a procedure for resolving the constitutional prob-
lems identified in its opinion and our own, and if no extension
has been granted for cause, the injunction imposed by the
district court regarding compulsory dues will take effect.”
That injunction bars the Colegio from compelling membership
until it either ceases all ideological activities not germane to its
core purposes or devises an adequate system to protect dis-
senters’ rights.
6. The Colegio may collect stamp fees so long as the funds are
segregated from other revenues and used only for core pur-
poses. Plaintiffs may not challenge the use of government
facilities to sell the Colegio stamps.
7. The district court award of $1 in nominal damages to each
plaintiff is affirmed.
Affirmed in part, reversed in part, modified and remanded for
further proceedings consistent with this opinion. Costs to
plaintiffs.
6 We expect that defendants immediately will begin a good-faith effort to
revise the Colegio’s compulsory membership system, and will submit their
proposal to the district court as soon as possible. We further expect that the
district court will need a period of time to review that proposal. We do not
intend that the injunction take effect during the review so long as it appears
that defendants have made a good-faith effort to fulfill their constitutional
obligations to plaintiffs. We leave it to the district court to determine when,
if at all, the injunction should take effect after the six-month delay.
A-37
Tk.
APPENDIX B
United States Court of Appeals
For the First Circuit
No. 88-1937
ROBERT E. SCHNEIDER, JR., ET AL.,
PLAINTIFFS, APPELLEES,
v.
COLEGIO DE ABOGADOS DE PUERTO RICO,
DEFENDANT, APPELLANT.
No. 88-1938
ROBERT E. SCHNEIDER, JR., ET AL.,
PLAINTIFFS, APPELLEES,
v.
COLEGIO DE ABOGADOS DE PUERTO RICO, ET AL.,
DEFENDANTS, APPELLEES.
CARMEN ANA CULPEPER, ETC., ET AL.,
DEFENDANTS, APPELLANTS.
No. 88-1939
ROBERT E. SCHNEIDER, JR., ET AL.,
PLAINTIFFS, APPELLANTS,
v.
COLEGIO DE ABOGADOS DE PUERTO RICO, ET AL.,
DEFENDANTS, APPELLEES.
wees a
A-38
BEFORE
Breyer, Chief Judge,
Corrin, Senior Circuit Judge,
CAMPBELL, TORRUELLA*, SELYA and Cyr, Circuit Judges,
Pieras**, District Judge
ORDER OF COURT
Entered December 20, 1990
The panel of judges that rendered the decision in these cases
having voted to deny the petition for rehearing «nd the sugges-
tion for the holding of a rehearing en banc having been care-
fully considered by the judges of the Court in regular active
service and a majnrity of said judges not having voted to order
that the appeal be heard or reheard by the Court en banc,
It is ordered that the petition for rehearing and the sugges-
tion for rehearing en banc be denied.
By the Court:
/s/ Francis P. Scictiano, Clerk
*Circuit Judge Juan R. Torruella is recused.
**Of the District of Puerto Rico, sitting by designation.
(cc: Messrs. Schneider, Jr., Anduze Montano, Ms. Rodriguez-Kodriguez)
A-39
APPENDIX C
United States Court of Appeals
For the First Circuit
Nos. 82-1538, 82-1573.
In re The JUSTICES OF THE SUPREME COURT
OF PUERTO RICO,
PETITIONERS.
In re COLEGIO DE ABOGADOS DE PUERTO RICO,
and Fundacion Colegio De Abogados,
PETITIONERS.
ARGUED Sept. 15, 1982.
Decipep Dec. 8, 1982.
Carlos V. Garcia Gutierrez, with whom Harry Anduze
Montano, Santurce, P.R., was on petition for writ of manda-
mus, for petitioners Colegio De Abogados De Puerto Rico and
Fundacion Colegio De Abogados.
Jay A. Garcia Gregory, and Miriam Naveira De Rodon,
with whom Salvador Antonetti, and Jose Julian Alvarez Gon-
zalez, San Juan, P.R., were on petition for writ of mandamus,
for petitioners the Justices of the Supreme Court of Puerto
Rico.
Robert E. Schneider, Jr., Santurce, P.R., and Hector L.
Marquez, San Juan, P.R., for Robert E. Schneider, Jr., et al.
Before Corrin, Chief Judge, Bownes and Breyer, Circuit
Judges.
Breyer, Circuit Judge.
The petitioners in these cases, the Puerto Rico Bar Associa-
tion (the “Colegio’”), the Bar Association Foundation (the
A-40
“Fundacion”), and the Justices of the Supreme Court of Puerto
Rico, seek writs of mandamus to compel the federal district
court to dismiss suits that five local attorneys have brought
against them. The suits, which are brought against other
Commonwealth defendants as well, are part of an ongoing
course of litigation attacking the constitutionality of statutes
that require members of the Puerto Rico bar to support the
Colegio. While the petitions were pending here, the district
court dismissed some, but not all, of the claims at issue below.
Given the present procedural posture of this case, we find that
the Justices are entitled to a writ providing them with a por-
tion of the relief that they seek. We find no basis, however, for
issuing the writ sought by the Colegio and the Fundacion.
I
The litigation underlying this proceeding concerns the con-
stitutionality of statutes that require members of the Puerto
Rico bar to belong to and support the Colegio. Puerto Rico has
an “integrated bar,” meaning that an attorney who wishes to
practice in the Commonwealth must belong to the Colegio. 4
L.P.R.A. § 774. As a condition of membership in the Colegio,
members must pay annual dues. If a member does not pay, he
is suspended from the Colegio, and an attorney who is sus-
pended from the Colegio loses the right to practice in Puerto
Rico. Id. §§ 774, 781-82. Commonwealth attorneys are also
required to support the Colegio and the Fundacion by pur-
chasing forensic stamps and, in their capacities as notaries,
notarial stamps. Id. §§ 783, 1006. The proceeds from the sale
of the stamps are given to the Colegio. Id. § 785.
The attack on the constitutionality of these statutes evi-
dently began on November 21, 1977, when the Colegio filed
disciplinary complaints in the Commonwealth Supreme Court
accusing a large number of attorneys, including three of the
five plaintiffs in these cases, of nonpayment of dues. Two of
the present plaintiffs, Robert Schneider and Hector Ramos
A-41
Diaz, responded by attacking the mandatory membership and
dues provisions as unconstitutional under both the Common-
wealth and the federal constitutions. They had no occasion at
the time to challenge the stamp provisions, and they subse-
quently withdrew their federal (but not Commonwealth) con-
stitutional challenges to the membership and dues provisions.
The Commonwealth Supreme Court, relying heavily on fed-
eral precedent, held that the membership and dues provisions
were valid under the Commonwealth constitution. Colegio v.
Schneider, No. 0-77-431 (P.R. Apr. 5, 1982). The court also
held, however, that the lawyers were constitutionally entitled
to prevent the Colegio from using their dues to support ide-
ological causes with which they disagreed. See Abood vy.
Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52
L.Ed.2d 261 (1977). The court ordered Schneider and Ramos
to pay their dues to the Colegio, subject to a then-unsettled
“fund segregation” plan. Schneider and Ramos refused to do
so, and on June 3, 1982, the Supreme Court suspended them
from the practice of law.
Six days later, Schneider and Ramos sued the Colegio, the
Fundacion, the Justices, and the Commonwealth Secretaries
of Justice and the Treasury in federal court. Asserting federal
jurisdiction on the basis of 42 U.S.C. § 1983, they attacked the
membership and dues statutes again, this time expressly on
federal constitutional grounds. They also attacked the consti-
tutionality of the stamp statutes insofar as the statutes entailed
using public funds for what they regarded as private purposes.
Finally, they attacked the Commonwealth disciplinary pro-
ceedings as having violated their federal constitutional rights.
They sought injunctions barring any of the defendants from
enforcing the statutes, and damages from the Justices and the
Colegio based upon the disciplinary proceedings.
Within two weeks, three more plaintiffs (only one of whom
had been involved in the Commonwealth proceedings) filed
similar complaints, which closely tracked the claims of
Schneider and Ramos but omitted claims based on the discipli-
A-42
nary proceedings. On June 21, the Justices moved to dismiss all
claims against them; the Colegio and the Fundacion followed
suit with similar motions. The Justices sought an expedited
decision on their motion, and when no such decision was
forthcoming by early July, they sought mandamus here. Em-
phasizing that the litigation in general, and the possibility of
discovery in particular, threatened their judicial work, they
asked that we require the district court either to grant their
dismissal motions outright or at least to reach an immediate
decision. We stayed proceedings against them, while leaving
the district court free to decide their motion for dismissal. The
“Colegio and Fundacion also petitioned for mandamus, re-
questing the same relief.
On September 13, two days before the petitions for manda-
mus were to be heard in this court, the district court passed on
the dismissal motions of the Justices, the Colegio and the Fun-
dacion. In a carefully reasoned opinion, it dismissed all con-
spiracy claims, all disciplinary and damage claims against the
Colegio and Fundacion, and all claims challenging the out-
come of the prior disciplinary proceedings. In essence, it left
the Justices subject only to the claims for declaratory and in-
junctive relief against the enforcement of the membership,
dues, and stamp statutes. The Colegio and the Fundacion re-
mained subject to similar claims and certain others. The Jus-
tices, the Colegio and the Fundacion continue to seek man-
damus in order to have the district court dismiss the remaining
claims.
II
[1,2] Neither the Colegio nor the Fundacion is entitled to
a writ of mandamus. It is elementary that mandamus requires
a showing that interlocutory relief is necessary to prevent
irreparable harm. Whether the Colegio and the Fundacion
wish this court to invoke its traditional mandamus power over
errors of a jurisdictional nature, its “supervisory” mandamus
A-43
authority, or its “advisory” mandamus powers, they must
demonstrate that something about the circumstances here
would make an ordinary appeal inadequate to protect their
interests. See Bankers Life & Casualty Co. v. Holland, 346
U.S. 379, 385, 74 S.Ct. 145, 149, 98 L.Ed. 106 (1953); United
States v. Kane, 646 F.2d 4, 9n.7 (1st Cir. 1981); United States
v. Sorren, 605 F.2d 1211, 1214-15 (1st Cir. 1979); Grinnell
Corp. v. Hackett, 519 F.2d 595, 599 (lst Cir.), cert. denied
sub nom. Chamber of Commerce of the United States v.
United Steelworkers of America, 423 U.S. 1033, 96 S.Ct. 566,
46 L.Ed.2d 407 (1975). No such showing has been made. The
only plausible injury that a denial of mandamus might inflict
on these petitioners is the time and expense of taking part in
the litigation below as it pursues its ordinary course. The
Supreme Court has made clear in another context that the ex-
pense of litigation ordinarily does not constitute irreparable in-
jury, and this court has specifically rejected the general
burdensomeness of litigation as a basis for assuming man-
damus jurisdiction. See Renegotiation Board v. Bannercraft
Co., 415 U.S. 1, 24, 94 S.Ct. 1028, 1040, 39 L.Ed.2d 123
(1974) (“Mere litigation expense, even substantial and unre-
coupable cost, does not constitute irreparable injury.”); In re
Sylvania Electric Products, Inc., 220 F.2d 423, 425 (Ist Cir.
1955); cf. In re Continental Investment Corp., 637 F.2d 1, 5-6
(1st Cir. 1980) (collateral-order doctrine). Because they have
failed to show how or why they cannot obtain full relief from
any of the district court’s alleged errors by appealing a final
judgment, the Colegio and the Fundacion have failed to estab-
lish their right to mandamus.
Ill
The issues that the Justices raise are more difficult. As will
be discussed below, they arguably suffer a special institutional
harm by being forzed to remain parties in this suit against
their will. Moreover, at least one of their arguments is “juris-
A-44
dictional” in nature — a traditional predicate for the issuance
of a writ of mandamus. United States v. Sorren, supra. We
therefore describe their status in the suit and their jurisdic-
tional argument in detail.
The Justices are now essentially nominal parties in the suits
against them. The district court has addressed their dismissal
motion, mooting their alternative prayer that we order the dis-
trict court to make a decision. Moreover, the court has de-
cided, by and large, in their favor. All damage claims, all con-
spiracy claims, and (in the district court’s words) all claims
“seeking in any way to modify, alter, challenge or otherwise
affect the outcome” of the prior disciplinary proceedings, have
been dismissed. The suits against the Justices have been re-
duced to conventional prospective attacks on the constitution-
ality of Commonwealth statutes, seeking traditional injunctive
and declaratory relief. The plaintiffs stated to us at oral argu-
ment that they would not conduct discovery against the Jus-
tices in light of the district court’s disposition of the Justices’
motion, which relieves the most immediate practical burden
of the litigation. In addition, since the other defendants have
adequate incentive and resources to defend the statutes, it is
difficult to see that the Justices, as a practical matter, need
participate further in the suits. It is certainly true that they
need not bear the burden of full litigation.
Judges who occupy this kind of nominal-party position
rarely object to their inclusion in suits on that ground. See,
e.g., Fernandez v. Trias Monge, 586 F.2d 848 (ist Cir. 1978).
On the rare occasions when they have so objected, however,
courts have carefully considered their claims and, in several
instances, haveprdered their dismissal from the suit. See
Mendez v. Hellé& 530 F.2d 457 (2d Cir. 1976); Gras v.
Stevens, 415 F.Supp. 1148 (S.D.N.Y. 1976) (three-judge
court). We therefore review the Justices’ arguments with
similar attention.
A-45
A. Membership and Dues Claims
[3, 4] Mandamus traditionally has issued to correct essen-
tially “jurisdictional” errors; the conventional office of the
writ is to restrain lower courts from acting in clear excess of
their jurisdiction. See United States v. Sorren, 605 F.2d at
1215. The Justices make one strong jurisdictional argument
before us. That argument, which rests on Article III of the
Constitution, is that there is no “case or controversy” between
the Justices and the plaintiff with respect to the membership
and dues claims. It is fundamental that to be heard in a federal
cour’, a “controversy” between litigants must be “definite and
concrete, touching the legal relationships of the parties having
adverse legal interests.” Aetna Life Ins. Co. v. Haworth, 300
U.S. 227, 240-41, 57 S.Ct. 461, 463-464, 81 L.Ed. 617 (1937);
see also United States Parole Commission v. Geraghty, 445
U.S. 388, 403, 100 S.Ct. 1202, 1212, 63 L.Ed.2d 479 (1980),
and United States v. Johnson, 319 U.S. 302, 305, 63 S.Ct.
1075, 1076, 87 L.Ed. 1413 (1943). Here, the Justices argue,
they and the plaintiffs possess no such “adverse legal interests,”
for the Justices’ only function concerning the statutes being
challenged is to act as neutral adjudicators rather than as
administrators, enforcers, or advocates.
We agree, with one qualification to be mentioned later, see
pp. 23-24 infra, that the role of the Justices with respect to
these statut®s is adjudicative. The Commonwealth’s statutes
require that an attorney who wishes to practice law in Puerto
Rico obtain admission to the Commonwealth bar and become
a member of the Colegio. They also provide that nonpayment
of dues warrants suspension from the Colegio, and that an
attorney who has been suspended from the Colegio loses the
right to practice. 4 L.P.R.A. §§ 774, 781. Under the statutory
scheme, both the Colegio and the Secretary of Justice can
bring a complaint based on nonpayment of dues before the
Puerto Rico Supreme Court. 4 L.P.R.A. §§ 738, 773(g). In de-
ciding cases based on such complaints, the Justices act as they
A-46
w ‘din any other case based upon a Commonwealth statute:
t sit as adjudicators, finding facts and determining law in a
neural and impartial judicial fashion.
We also agree that, at least ordinarily, no “case or contro-
versy” exists between a judge who adjudicates claims urider a
statute and a litigant who attacks the constitutionality of the
statute. Judges sit as arbiters without a personal or institu-
tional stake on either side of the constitutional controversy.
They are sworn to uphold the Constitution of the United
States. They will consider and decide a claim that a sgate or
Commonwealth statute violates the federal Constitutiofi
without any interest beyond the merits of the case. Almost
invariably, they have played no role in the statute’s enact-
ment, they have not initiated its enforcement, and they do not
even have an institutional interest in following their prior deci-
sions (if any) concerning its constitutionality if an authorita-
tive contrary legal determination has subsequently been made
(for example, by the United States Supreme Court). In part for
these reasons, one seeking to enjoin the enforcement of a stat-
ute on constitutional grounds ordinarily sues the enforcement
official authorized to bring suit under the statute; that indi-
vidual’s institutional obligations require him to defend the
statute. One typically does not sue the court or judges who are
supposed to adjudicate the merits of the suit that the enforce-
ment official may bring. That is presumably why the plaintiffs
in this case have sued the Colegio and the Secretary of Justice,
the parties in whose hands the enforcement of the challenged
statutes is vested.
What authority there is on the subject is consistent with
these views. In Mendez v. Heller, 380 F.Supp. 985 (E.D.N.Y.
1974) (three-judge court) (per curiam), « ‘fd, 530 F.2d 437 (2d
Cir. 1976), a plaintiff challenged the residency requirements
of New York’s divorce statute and sought, inter alia, to enjoin
several state judges from enforcing the requirement in any
divorce proceeding she might bring in the future. The three-
judge court held that no justiciable controversy existed be-
oa
A-47
tween the plaintiff and the judges, and the Second Circuit af-
firmed on that ground. The logic of the opinion is clear:
Normally issues, and particularly issues of constitu-
tional dimensions, are not determined except where they
are necessarily drawn in question by litigation over real
and present disputes in which the interest of each party
requires that it seek a determination of the issue in an
opposite sense of that sought by the other party. Hence,
entertainment of plaintiff's suit here requires the conclu-
sion that there is a genuine controversy between the
plaintiff and one or more of the defendants in which they
have an adverse interest to hers in the determination. But
[the state judge] has no such interest: if, as plaintiff con-
tends, the statute is unconstitutional, then [the judge’s]
sole interest is in so determining, and in denying effect of
the statute. He is not an adversary of the plaintiff, but a
judicial officer bound to decide the issue according to the
law as he finds it. ... [H]is posture would be that of an
entirely disinterested judicial officer and not in any sense
the posture of an adversary to the contentions made on
either side of the case.
380 F.Supp. at 990. In Gras v. Stevens. supra, Judge Friendly
reached an identical conclusion in a suit challenging the con-
stitutionality of a New York law requiring husbands but not
wives to bear part of the cost of their spouses’ legal representa-
tion in divorce proceedings. He concluded that state judges
were not proper party defendants under § 1983 because they
had no stake in upholding the statute against constitutional
challenge: “If [the plaintiff] is right in thinking that § 237(a)
of the Domestic Relations Law offends the equal protection
© clause of the Fourteenth Amendment, they are as bound to
strike it down as we are.” 415 F.Supp. at 1151 (footnote omit-
ted). Although no other courts appear to have had occasion to
consider the issue directly, several have alluded to it in terms
A-48
comparable to those in Mendez and Gras. See Cavett v. Ellis,
578 F.2d 567, 570 n.6 (5th Cir. 1978); Rhodes v. Laurino, 444
F.Supp. 170, 172 n.3 (E.D.N.Y. 1978), aff'd per curiam, 601
F.2d 1239 (2d Cir. 1979).
[5] We find the reasoning in Mendez and Gras persuasive.
However, like the Second Circuit and Judge Friendly, we are
reluctant to rest our decision directly on Article III when the
case can be resolved on a nonconstitutional basis. See Hagans
v. Lavine, 415 U.S. 528, 547, 94S.Ct. 1372, 1384, 39 L.Ed.2d
577 (1974); Ashwander v. TVA, 297 U.S. 288, 346-47, 56
S.Ct. 466, 482-483, 80 L.Ed. 688 (1926) (Brandeis, J., concur-
ring). We interpret Mendez and Gras as holding that under
the circumstances present in those cases, judges were not
proper party defendants in § 1983 actions challenging the con-
stitutionality of state statutes. In short, § 1983 does not provide
relief against judges acting purely in their adjudicative capac-
ity, any more than, say, a typical state’s libel law imposes
liability on a postal carrier or telephone company for simply
conveying a libelous-message. See, e.g., Mason v. Western
Union Tel. Co., 52 Cal.App.3d 429, 125 Cal. Rptr. 53 (1975)
(telegraph company); Anderson v. New York Tel. Co., 42
A.D.2d 151, 345 N.Y.S.2d 740 (1973) (telephone company).
Just as a dismissal for failure to state a claim would be proper
in the latter case, so is it in the former. See Fed.R.Civ.P. 12(b)
(6). By joining in this interpretation of § 1983, we avoid the
constitutional problems that might be raised by a more expan-
sive app.ication of the statute. See Crowell v. Benson, 285 U.S.
22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). We avcid ex-
plicitly finding that Congress could not make judges proper
parties in cases such as this one should it choose to do so, and
we avoid the constitutional snares that might otherwise be
posed by similar, but distinguishable, cases.
Among those similar but distinguishable cases is Supreme
Court of Virginia v. Consumers Union of America, Inc., 446
U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), in which the
Supreme Court held that the litigants before it could sue
A-49
judges to enjoin them from enforcing bar membership require-
ments. See also Mandel v. Erickstad, 648 F.2d 1175 (8th Cir.
1981); Person v. Association of the Bar of New York, 554 F.2d
534 (2d Cir.), cert. denied, 434 U.S. 924, 98 S.Ct. 403, 54
L.Ed.2d 282 (1977); Austin v. Municipal Court, 235 F.2d 836
(D.C. Cir. 1956), cert. denied, 353 U.S. 923, 77 S.Ct. 682, 1
L.Ed.2d 720 (1957). In Consumers Union, unlike the case
before us, the requirements under attack were promulgated by
the judges themselves in the form of court rules; the judges had
acted in a legislative capacity, which made their involvement
in the litigation more direct and which gave them an institu-
tional stake in the litigation’s outcome. It is therefore not sur-
prising that the Supreme Court in Consumers Union, as well
as the courts of appeals in Mandel, Person, and Austin, have
treated the judicial defendants as having acted in a nonadjudi-
catory (enforcement) capacity. There is no reason to read into
these cases any further conclusion that plaintiffs can appro-
priately sue judges whenever they attack a statute as unconsti-
tutional, nor is there any reason for us to question these cases
in arriving at the result we reach here.
Other categories of suits are equally distinguishable. For ex-
ample, judges are frequently named as defendants when liti-
gants seek writs of mandamus, prohibition, and the like. In
such instances, unlike this case, the judge is named as a party
as a matter of proper form; the writ is a traditional and well-
accepted procedural device for transmitting instructions from
one court to another, and there are sound procedural reasons
for making the judge a formal participant in an ongoing con-
troversy over his disposition of an existing suit.
[6,7] In still other suits, it is arguably necessary to enjoin a
judge to ensure full relief to the parties. Cf. WXYZ, Inc. v.
Hand, 658 F.2d 420 (6th Cir. 1981) (plaintiff obtains injunc-
tion against state court entorcement of prior court suppression
order). Such cases are unusual, for a court should not enjoin
judges from applying statutes when complete relief can be
afforded by enjoining all other parties with the authority to
A-50
seek relief under the statute. See General Motors Corp. v.
Buha, 623 F.2d 455, 463 (6th Cir. 1980); United Steelworkers
of America v. Bishop, 598 F.2d 408, 413 (9th Cir. 1979);
Lamb Enterprises, Inc. v. Kiroff, 549 F.2d 1052, 1060 (6th
Cir.), cert. denied, 431 U.S. 968, 97 S.Ct. 2926, 53 L.Ed.2d
1064 (1977). Indeed, it is ordinarily presumed that judges will
comply with a declaration of a statute’s unconstitutionality
without further compulsion. See Davis v. Page, 640 F.2d 599,
605 (5th Cir. 1981) (en banc), vacated on other grounds sub
nom. Chastain v. Page, _____ U.S. , 102 S.Ct. 3504, 73
L.Ed.2d 1380 (1982); cf. Law Students Civil Rights Research
Council, Inc. v. Wadmond, 299 F.Supp. 117, 133 (S.D.N.Y.
1969) (three-judge court) (Friendly, J.), aff'd, 401 U.S. 154, 91
S.Ct. 720, 27 L.Ed.2d 749 (1971). In any event, there is no
relief-related basis for including the judges in this law suit.
We recognize the existence of cases similar to this one, other
than Mendez and Gras, in which courts have entertained suits
against judges that attack statutes related to the judicial pro-
cess or statutes previously enforced by the particular judge
against the plaintiff. See, e.g., Fernandez v. Trias Monge,
supra; Stivers v. Minnesota, 575 F.2d 200 (8th Cir. 1978),
cert. denied, 439 U.S. 1127, 99 S.Ct. 1043, 59 L.Ed.2d 88
(1979); Fowler v. Alexander, 478 F.2d 694 (4th Cir. 1973). In
such cases, however, plaintiffs typically have been denied
relief — although on grounds other than justiciability. Where
plaintiffs have obtained relief, the justiciability issue has not
- been raised. We have found only one case in which a federal!
court enjoined state judges from enforcing a state statute; and
no party in that case appears to have presented the “case or
controversy” question. Kendall v. True, 391 F.Supp. 413
(W.D. Ky. 1975).
Before concluding that the Justices are correct, however, we
must turn to the qualification mentioned earlier, see p. 21
supra — a qualification as to our statement that the Justices’
role is adjudicatory. The Commonwealth Supreme Court has
long claimed an inherent disciplinary power over members of
A-51
the bar, including the power to discipline attorneys for causes
other than those enumerated by statute. See Colegio v.
Barney, No. 0-80-199 (P.R. June 17, 1980), slip op. at 3; in re
Liceaga, 82 P.R.R. 245, 248-49 (1961); In re Abella, 67 P.K.R.
211, 219 (1947); In re Gonzalez, 65 P.R.R. 357, 367 (1945); In
re Bosch, 65 P.R.R. 232, 234 (1945); In re Tormes, 30 P.R.R.
248, 249-50 (1922). Moreover, the Supreme Court has asserted
the general power to initiate a disciplinary proceeding itself,
regardless of the involvement of the Colegio or the Secretary of
Justice. See, e.g., In re Gonzalez, 65 P.R.R. at 367-68. Insofar
as the plaintiffs direct their claims against the exercise of this
disciplinary power, they are suing the Justices as “enforcers”
rather than as “adjudicators.” See Supreme Court of Virginia
v. Consumers Union, 446 U.S. at 736 & n.15, 100 S.Ct. at
1977 & n.15.
[8] A review of the way in which the judges have exercised
their enforcement power, however, makes clear that there is
virtually no likelihood that this nonstatutory power could, or
would, ever be exercised to enforce the membership and dues
requirements at issue here. The Justices’ attorneys have
assured us that this power is exercised only with respect to
attorney misconduct that occurs in proceedings before the
Supreme Court itself. Even if that assurance is overstated, the
court’s exercise of its power has been limited to instances of ac-
tual misconduct, whether the misconduct has taken place in
front of the Supreme Court or in a court below. See, e.g., In re
Gonzalez, supra (Supreme Court initiates proceedings against
attorney who filed defamatory pleadings in lower court). We
can find no cases to the contrary. As long as the statutes exist,
the Court will proceed to adjudicate under the statutes.
Should the plaintiffs succeed in setting aside the statutes, non-
payment of dues or refusal to join the Colegio would not con-
stitute misconduct. There is thus no reason to believe that the
Justices would penalize any such activity.
The Supreme Court has recognized that the mere existence
of enforcement power does not create a justiciable controversy
A-52
under Article III with enforcement officials. See Supreme
Court of Virginia v. Consumers Union, 446 U.S. at 736 n.15,
100 S.Ct. at 1977 n.15. Indeed, as applied to challenges to reg-
ulatory and criminal statutes, federal courts have taken Article
III to require a showing not only that the plaintiff is reason-
ably likely to engage in proscribed (but allegedly constitution-
ally protected) conduct, but also that the officials responsible
for enforcing the challenged statute are reasonably likely to
prosecute the plaintiff when he does so. See Babbitt v. United
Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct.
2301, 2308, 60 L.Ed.2d 895 (1979); O’Shea v. Littleton, 414
U.S. 488, 493-98, 94 S.Ct. 669, 674-677, 38 L.Ed.2d 674
(1974); Poe v. Ullman, 367 U.S. 497, 507, 81 S.Ct. 1752, 1758,
6 L.Ed.2d 989 (1961) (plurality opinion); McCollester v. City
of Keene, 668 F.2d 617, 618-21 (1st Cir. 1982); International
Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 818
(5th Cir. 1979). But cf. Epperson v. Arkansas, 393 U.S. 97,
101-02, 89 S.Ct. 266, 268-269, 21 L.Ed.2d 228 (1968)
(Supreme Court reaches merits of attack on Arkansas statute
despite the fact that “[t]here is no record of any prosecutions in
Arkansas under its statute.”).
Again, we need not reach the Article III question directly
here, for in light of these cases, and in light of the fact that the
plaintiffs have made fo representations in their complaint or
in argument before us concerning a genuine risk of enforce-
ment by the Justices, cf. Dewey v. University of New Hamp-
shire, 694 F.2d 1 (1st Cir. 1982), the plaintiffs’ complaint does
not state a claim against the Justices in their enforcement
capacity.
[9, 10] We conclude that the plaintiffs have failed to state
any claim against the Justices concerning the membership and
dues statutes. We also believe that mandamus is an appropri-
ate remedy to bring about the dismissal of those claims. Man-
damus traditionally requires a shcwing of “jurisdictional”
error, but courts look to the practical nature of the claim of er-
ror rather than to its formal label. See United States v. Lasker,
A-53
481 F.2d 229, 235 (2d Cir. 1973), cert. denied, 415 U.S. 975,
94 S.Ct. 1560, 39 L.Ed.2d 871 (1974); see also In re United
States, 565 F.2d 173 (ist Cir. 1977); In re La Providencia
Development Corp., 406 F.2d 251 (1st Cir. 1969). Our deci-
sion here, while formally resting on the plaintiffs’ failure to
state a claim, is so influenced by Article II1-type jurisdictional
considerations that it falls within the scope of our traditional
mandamus authority. Arguably, this case falls within the
terms of our “advisory” mandamus power as well. The issue
presented is novel in this circuit, it is important, and given the
number of new plaintiffs who have joined these proceedings
and the possibility of parallel proceedings, it may well recur
before further appellate review is possible. See Grinnell Corp.
v. Hackett, 519 F.2d at 599.
More importantly, the type of harm that would be caused
by remitting the Justices to the ordinary appellate process here
is not that suffered by an ordinary litigant who is forced to
wait until the conclusion of a lawsuit to cure legal errors on
appeal. To require the Justices unnecessarily to assume the role
of advocates or partisans on these issues would tend to under-
mine their role as judges. To encourage or even force them to
participate as defendants in a federal suit attacking Common-
wealth laws would be to require them to abandon their neu-
trality and defend as constitutional the very laws that the
plaintiffs insist are unconstitutional — laws as to which their
judicial responsibilities place them in a neutral posture. In-
deed, a public perception of partiality might well remain even
were the Justices to take no active part in the litigation. The
result risks harm to the court’s stance of institutional neutrality
— aharm that appeal would come too late to repair. While at
times such harms may have to be tolerated in order to afford
proper relief to a party, we believe that they warrant the exer-
cise of our mandamus power here, when no relief question is
at issue and when the plaintiffs, for reasons of a jurisdictional
sort, have failed to make out a case against the Justices.
A-54
B. The Forensic and Notarial Stamp Claims
The Justices did not make a similar Article III-type jurisdic-
tional argument concerning the stamp claims in the court
below. The plaintiffs’ stamp claims, like their other claims,
contest the constitutionality of Commonwealth statutes, in
this instance those requiring forensic and notarial stamp pur-
chases whose proceeds go to the Colegio. The Justices’ Article
III position with respect to these claims, however, may be dif-
ferent, for here the Justices, and particularly the Chief Justice,
may occupy a special administrative position. See 4 L.P.R.A.
§ 1038. The plaintiffs have a plausible argument that they are
suing the Justices in their “administrative” rather than their
“adjudicative” capacity. If the Justices believe the contrary,
they must make their argument first in the district court.
[11, 12] None of the Justices’ objections to the plaintiffs’
claims warrants issuance of a writ of mandamus, for each ob-
jection is either incorrect or nonjurisdictional, or both. The
Justices’ argument that they are simply immune from suit for
injunctive or declaratory relief is wrong; the district court cor-
rectly held that there is no such absolute immunity and that
injunctions can be issued against judges in an appropriate
case. See Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979) (dic-
tum), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d
772 (1980); Heimbach v. Village of Lyons, 597 F.2d 344 (2d
Cir. 1979) (per curiam); Rud v. Dahl, 578 F.2d 674 (7th Cir.
1978) (per curiam); Kelsey v. Fitzgerald, 574 F.2d 443 (8th
Cir. 1978) (per curiam); Briggs v. Goodwin, 569 F.2d 10
(D.C. Cir. 1977) (dictum), cert. denied, 437 U.S. 904, 98
S.Ct. 3089, 57 L.Ed.2d 1133 (1978); Shipp v. Todd, 568 F.2d
133 (9th Cir. 1978) (per curiam); Berson v. Association of the
Bar of New York, supra; Timmerman v. Brown, 528 F.2d 811
(4th Cir. 1975); F'ansen v. Ahlgrimm, 520 F.2d 768 (7th Cir.
1975); Fowler v. Alexander, 478 F.2d 694 (4th Cir. 1973); Lit-
tleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), rev'd on other
grounds sub nom. O'Shea vy. Littleton, 414 U.S. 489, 498, 94
~ el
A-55
S.Ct. 669, 677, 38 L.Ed.2d 674 (1974); Jacobson v. Schaefer,
44] F.2d 127 (7th Cir. 1971); Law Students Civil Rights Re-
search Council, Inc. v. Wadmond, supra. The Justices’ argu-
ment that the plaintiffs’ claims are barred by res judicata and
collateral estoppel is not jurisdictional, and we do not see in
any event how it applies to stamp claims whose merits have
not previously been decided.
[13] The facts that the stamp claims were only mentioned
in dicta in the previous disciplinary suits before the Common-
wealth Supreme Court, and that some of the plaintiffs here
did not participate in those suits, disposes of the Justices’
claims based on Rooker v. Fidelity Trust Co., 263 U.S. 413, 44
S.Ct. 149, 68 L.Ed. 362 (1923) (forbidding federal district
courts from asserting appellate jurisdiction over state court
judgments). The Justices also argue that abstention is proper
under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 669 (1971), but there is no current Commonwealth
proceeding involving the stamp statutes to which the district
court can defer. Finally, the Justices argued at length that the
membership and dues claims were outside the subject matter
jurisdiction of the district court because they did not present
substantial federal questions, see, e.g., Hagans v. Lavine, 415
U.S. at 536-38, 94 S.Ct. at 1378-1379; Beli v. Hood, 327 U.S.
678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946), but they
have raised no similar argument about the stamp claims,
perhaps wisely.
The Justices do argue that the district court is barred from
hearing the stamp claims by the Butler Act, 48 U.S.C. § 872,
which provides in relevant part that “[n]o suit for the purpose
of restraining the assessment or collection of any tax imposed
by the laws of Puerto Rico shall be maintained in the District
Court of the United States for Puerto Rico.” The Justices argue
that the stamp fees at issue are “taxes” within the meaning of
the Butler Act. The district court rejected this argument,
noting that whether or not the stamp fees constitute a “tax” for
purposes of the Act presents a question of federal law rather
A-56
than one of Commonwealth law, as the Justices’ brief suggests.
See Robinson Protective Alarm Co. v. City of Philadelphia,
581 F.2d 371 (3d Cir. 1978) (construing meaning of “tax” in
Tax Injunction Act of 1937).
[14] This court has construed the Butler Act in pari
materia with the Tax Injunction Act of 1937. Carrier Corp. v.
Perez, 677 F.2d 162, 164 (Ist Cir. 1982). The Tax Injunction
Act was enacted because otherwise,
“state tax administration might be thrown into disarray,
and taxpayers might escape the ordinary procedural re-
quirements imposed by state law. During the pendency
of the federal suit the collection of revenue under the
challenged law might be obstructed, with consequent
damage to the State’s budget, and perhaps a shift to the
State of the risk of taxpayer insolvency. Moreover, federal
constitutional issues are likely to turn on questions of state
law, which ... are more properly heard in the state
courts.”
Rosewell v. LaSalle National Bank, 450 U.S. 503, 527, 101
S.Ct. 1221, 1236, 67 L.Ed,2d 464 (1981) (quoting Perez v.
Ledesma, 401 U.S. 82, 128 n.17, 91 S.Ct. 674, 699 n.17, 27
L.Ed.2d 701 (1971) (Brennan, J., concurring in part and dis-
senting in part)). Since these concerns are not significantly im-
plicated when the revenue scheme under attack devotes all of
the funds that it generates to a bar association rather than to
the treasury, 4 L.P.R.A. §§ 785(b), 1006, we find no clear
error in the district court’s finding that the Butler Act does not
apply.
[15] To repeat, the Justices’ position in the stamp litigation
is that of a nominal party. They wiil not suffer discovery; they
need not appear; and since other parties (including the Com-
monwealth Secretary of Justice) are prepared to defend the
statutes on their merits, they need not take a position or even
fiie a brief. Their arguments are insufficient to show any clear
A-57
jurisdictional error in the district court’s failure to dismiss
them at this stage of the proceedings, at least since they may
possess administrative responsibilities in respect to the stamp
statutes that would make them a proper party for purposes of
“case or controversy.” Cf. Supreme Court of Virginia v. Con-
sumers Union, supra. We do not see how the maintenance of
the stamp suits against them as purely nominal parties could
affect the functioning of, or any judgment of, their court or
any other Commonwealth court so as to warrant the exercise
of any “supervisory” or “advisory” power of mandamus that
we might have. The petition in respect to the stamp claims is
therefore denied
IV
The petition of the Colegio and the Fundacion for a writ of
mandamus is denied. The petition of the Justices for a writ of
mandamus is granted in part and denied in part. A writ shall
issue in accordance with this opinion, requiring the district
court to dismiss the claims against the Justices insofar as they
involve Puerto Rico’s system of compulsory bar membership
and compulsory payment of bar dues.
So ordered.
A-58
APPENDIX D
United States Court of Appeals
For the First Circuit
Nos. 83-1586 to 83-1589.
Jorge F. ROMANY, et al.,
PLAINTIFFS, APPELLEES,
v.
COLEGIO DE ABOGADOS DE PUERTO RICO,
DEFENDANT, APPELLANT.
Oreste Ramos DIAZ, et al.,
PLAINTIFFS, APPELLEES,
v.
COLEGIO DE ABOGADOS DE PUERTO RICO,
DEFENDANT, APPELLANT.
Jorge SOUSS, et al.,
PLAINTIFFS, APPELLEES,
v.
COLEGIO DE ABOGADOS DE PUERTO RICO,
DEFENDANT, APPELLANT.
Robert E. SCHNEIDER, et al.,
PLAINTIFFS, APPELLEES,
0.
COLEGIO DE ABOGADOS DE PUERTO RICO.
DEFENDANT, APPELLANT.
> —_
=
=
ARGUED Fes. 6, 1984.
Decipep Auc. 23, 1984.
A-59
Laurence H. Tribe, Cambridge, Mass., with whom Kath-
leen Sullivan, Boston, Mass., and Susan Estrich, Cambridge,
Mass., were on brief, for defendant, appellant.
Marvin S. Cohen, Washington, D.C., with whom John M.
Gibbons, Stroock & Stroock & Lavan, Washington, D.C.,
Robert E. Schneider, Washington, D.C., and Hector L. Mar-
quez, San Juan, P.R., were on brief, for plaintiffs, appellees.
Before CamMpBELL, Chief Judge, Wispom,* Senior Circuit
Judge, and Breyer, Circuit Judge.
Levin H. Campsett, Chief Judge.
This appeal from the United States District Court for the
District of Puerto Rico brings before us for the second — and
perhaps not the last — time a dispute over compelled mem-
bership in Puerto Rico’s integrated bar. See In re the Justices of
the Supreme Court of Puerto Rico, 695 F.2d 17 (1st Cir. 1982).
While we described many of the particulars in our earlier
opinion, and while the facts were comprehensively stated by
the district court, 565 F.Supp. beginning at 965, we restate
them here with particular attention to events that have taken
place in the Supreme Court of Puerto Rico as well as those in
the federal court.
The Commonwealth of Puerto Rico has an integrated bar
association known as the Colegio de Abogados de Puerto Rico
(“Colegio”). While the Colegio’s antecedents date back to the
days of Spanish ruije, the present Colegio was created in May
of 1932 by Act No. 43, P.R.Laws Ann. tit. 4, § 771 et seq. The
terms of that statute are not unlike statutes in force in 32 states
of the union which likewise have integrated bars, i.e., associa-
tions to which all lawyers are compelled to belong.'
*Of the Fifth Circuit, sitting by designation
' See Lathrop v. Donahue, 367 US. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191
(1961) (approving the Wisconsin unified bar). For one scholar’s overview
and his critique of the present *@tus of such groups, see T. Schneyer, The
Incoherence of the Unified Bar wapt—Gereralizing from the Wisconsin
Case, 1983 A.B.F. Res. ]
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The Colegio’s express statutory duties are to “cooperate in
the improvement of the administration of justice,” “defend the
rights and immunities of lawyers,” promote fraternal rela-
tions, and “maintain healthy and strict professional morals
among the members.”? Membership in the Colegio is compul-
sory for all lawyers in Puerto Ri¢o, and each member must pay
the prescribed dues on pain of suspension from his right to
practice.* Besides collecting dues, Puerto Rico law empowers
the Colegio to issue forensic stamps which every Puerto Rico
lawyer must affix to the initial document he files in any
judicial proceeding, and to collect and use the proceeds from
their sale. Puerto Rico law also authorizes the Colegio to issue
and to receive proceeds from the sale of notarial and other re-
quired stamps.
The dispute which underlies the present appeal is a claim by
plaintiff attorneys that their associational rights under the first
and fifth or fourteenth amendments of the United States Con-
stitution are violated by being compelled to belong to the Cok
egio.* Particularly outrageous, in their view, is the Colegio’s
practice of taking public positions on controversial issues far
removed from the immediate concerns of lawyers as a class —
® The Colegio’s statutory powers include adopting and establishing profes-
sional ethics, receiving and investigating complaints on the conduct of
lawyers (a power also held by the Attorney General of Puerto Rico) and insti-
tuting disbarment proceedings before the Supreme Court of Puerto Rico.
Also the Colegio is to develop members’ insurance programs, and create a
non-profit bar foundation for handling legal aid.
> The Supreme Court of Puerto Rico has held that it alone controls bar
entry, and that legislation of this type regulating the right to practice law is
advisory only. Ex parte Jimenez, 55 P.R.R. 51 (1939). However, the court
has indicated its approval of Law No. 43 “as satisfactory legislation to aid
this court in regulating admissions to the-bar and the conduct of its
members.” In re Bosch, 65 P.R.R. 232, 235 (1945). Accordingly, the court
has suspended lawyers, including two of the plaintiffs in this suit, from prac-
tice for nonpayment of Colegio’s dues.
* See Examining Board of Engineers, Architects and Surveyors v. Flores de
Otero, 426 U.S. 572, 599-601, 96 S.Ct. 2264, 2279-80, 49 L.Ed.2d 65 (1976)
(leaving upon the question whether due process guarantees against actions of
the government of Puerto Rico emanate from the fifth or fourteenth amend-
ments).
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associate with, or pay dues and fees to a group that publicly
identifies with views with which plaintiffs disagree and which
they perceive as immaterial to any legitimate professional in-
terest which the integrated bar may be formed to promote.
A. Proceedings before the Supreme Court of Puerto
Rico
This dispute first surfaced in 1977 when the Colegio com-
plained to the Supreme Court of Puerto Rico against 99 attor-
neys, including three of the five plaintiffs, for failure to pay
prescribed membership dues to the Colegio. Most of the delin-
quents soon paid up, but two of those who later became plain- »
tiffs below did not. These two attorneys, Robert F. Schneider,
Jr., and Hector R. Ramos Diaz, raised affirmative defenses in
the Supreme Court of Puerto Rico. Initially they pleaded both
the Puerto Rico and United States Constitutions by way of de-
fense, but subsequently they attempted to withhold and
reserve their federal claims under purported analogy with
England v. Louisiana Medical Examiners, 375 U.S. 411, 84
S.Ct. 461, 11 L.Ed.2d 440 (1964).
On April 5, 1982, after argument and upon findings by a
special master, the Supreme Court of Puerto Rico issued an
opinion holding that the two lawyers had a duty to pay dues to
the Colegio, and ordering them to do so. Colegio v. Schneider,
112 D.P.R. 540 (1982).
In up..olding compulsory bar membership and compulsory
financial support, the Supreme Court of Puerto Rico relied
heavily upon federal constitutional precedents, including
Lathrop v. Donahue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d
1191, see note 1, supra, although it acknowledged that the liti-
gants were pressing only claims under the Constitution and
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laws of Puerto Rico. The court also relied upon a distinctive
tradition of compulsory bar associations in civil law jurisdic-
tions and upon the socio-political circumstances of Puerto
Rico.
Bar associations in civil law juriscictions, it explained, have
“from time immemorial” enjoyed both compulsory member-
ship and a “primarily political role.” In Spain and France their
political involvement led, from time to time, to the termina-
tion of their privileges — including of compulsory membership
— by “absolutist” regimes opposed to the “liberties they pro-
fessed.”” Colegio v. Schneider, 112 D.P.R. 540, 550-51 (1982)
(official translation). In Puerto Rico, the court stated, the bar
association had enjoyed compulsory membership, from its
establishment by Royal Decree in 1840,
until it was suppressed by General John R. Brooke during
the United States military government on the Island. U.S.
Department of War, General Orders and Circulars,
1898-1900, G.O. 20 of December 3, 1898. Instead of the
Bar Association of Puerto Rico, it established a colorless
entity, which was voluntary and which led a precarious
life until the present Bar Association was created by Act
No. 43 of May 14, 1932.
Id. at 544-45. That legislation, the court noted, revived one of
Puerto Rico’s “most ancient and respected institutions.” Id. at
547.
“The singular socio-political circumstances of Puerto Rico”
also buttress the constitutionality of Law No. 43. Id. at 549.
Institutions such as the Bar Association — the Legislature
has extended the compulsory membership to many other
groups — fulfill a very special mission in our society.
Contrary to the strongly pluralistic character of North
American society, our milieu has traditionally been
monolithic, lacking the many independent voices that
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makessuch great contributions to the health of the demo-
cratic way of life.
Id. at 547. The establishment of a strong bar association, then,
with compulsory membership, serves the “public interest in
the creation of a strongly pluralistic society, in furtherance of
the practice of law and [in] the good operation of the judicial
system. ...” Id. at 549. The bar association exists not merely
“for the strict interest of a class fi.e., lawyers], but also for the
good operation of justice in our country and the social ad-
vancement of the community.” Id. at 547. These interests
“outweigh[ ] the personal inconveniences that compulsory
membership might entail.” Id. at 549. Hence, even though
Colegio enjoys compulsory membership, the court heid, it has
“ample freedom of speech under the Provisions of art. IT, Sec.
4 of the Constitution [of Puerto Rico]” and “need not be a
quiet and blushing entity, afraid to use the voice granted it by
the very pluralistic purpose it should serve... .” Jq. at 551.
The court explained, however, that the Constitution of
Puerto Rico also protects the Colegio’s dissenting members as
“the sense of the freedom of speech clause contained in Art. II,
Sec. 4 of the Constitution of Puerto Rico is not narrower than
that given by the United States Supreme Court to the First
Amendment” in Abood V. Detroit Board of Education, 43)
U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 26] (1977). Accordingly,
while the Colegio is entitled to speak out boldly on ideological
matters,
[Lawyers who dissent from such pronouncements — and
not those who object to the Bar Association’s performance
of its statutory purposes or of those imposed by this Court
— enjoy, under the Constitution of Puerto Rico, the right
Such disapproval may be of a general nature, as it was ex-
pressed in [Railway Clerks] v. Allen, 373 U.S. 113 [83
S.Ct. 1158, 10 L.Ed.2d 235] [(1963)] and in Abood.
112 D.P.R. at 554-55,
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in the fifth and final part of its opinion, headed “The
Remedy,” the Supreme Court of Puerto Rico instructed the
Colegio, not later than the date set for collecting its next
annual dues, to devise a method for ascertaining that contri-
butions? of a dissenting member shall not be used for ideolog-
ical purposes. The court said the method “shall duly follow the
principles laid down in [Machinists v.} Street, [367 U.S. 740,
81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961),] Allen and Abood.”
Other directions were included.
A month after issuing the above opinion, the Supreme Court
of Puerto Rico issued a resolution dated May 6, 1982, retaining
jurisdiction,
to take cognizance of any issue regarding the fifth and last
part of our judgment of April 5, 1982, and also to ap-
prove, disapprove or finally modify the remedy that shall
be drawn.
The above resolution was followed, a month later, by the
Puerto Rico court’s further resolution suspending the two
plaintiffs from practice. The court found they had disregarded
directions in its opinion of April 5, 1982, to pay their Colegio
dues within 15 days, “while the remedy mentioned in the
opinion is being implemented.”
B. The Federal Suit
Soon thereafter, on June 9, 1982, the two suspended attor-
neys brought the present action in the federal district court.
Relying now on the federal Constitution, they challenged the
* There is a dispute between the parties on appeal whether the Supreme
Court’s order intended that the Colegio devise a method to prevent bar stamp
fees. as well as dues, emanating from a dissenter, from being used “for
ideological purposes.” The Colegio insists that the Supreme Court meant to
cover stamp fees also. The district court and the plaintiffs think otherwise
We assumed the correctness of the latter position in In re the Justices of the
Supreme Court of Puerto Rico, 695 F.2d at 26.
A-65
requirement that lawyers belong and pay dues and stamp fees
to the Colegio.® The three other plaintiffs brought similar sep-
arate actions a short time Jater.
C. The Colegio’s Plan for Dissenter Refunds
At about the same time the federal proceedings were getting
underway, the Colegio announced certain steps that it was
taking under the Puerto Rico Supreme Court’s directive to
devise a plan for avoiding use of dissenters’ payments for ide-
ological activities. On June 25, 1982, the president of the Coie-
gio filed the first of two informative motions in the Supreme
Court of Puerto Rico explaining the Colegio’s views on what
constituted “ideological purposes.” This document suggests
that, in the Colegio’s view, only partisan political statements
will qualify as “ideological” for purposes of the court’s opin-
ion. The document also seems to define all of the Colegio’s past
* Robert F. Schneider’ Jr., and Hector R. Ramos Diaz, the two attorneys
who were suspended in the proceeding before the Supreme Court of Puerto
Rico, not only sought injunctive and declaratory relief against the Colegio,
the Commonwealth Secretaries of the Treasury and of Justice, and the
Justices of the Supreme Court, based on the alleged unconstitutionality of the
statutes compelling bar membership and payment of dues and stamp fees,
but also sought damages. They charged that the disciplinary proceeding
leading to their suspensions was unconstitutional and grew out of a con-
spiracy between the Colegio and the Justices.
The aistrict court dismissed Schneider's and Hector Ramos’s damages
claims against the Justices and, for the most part, against Colegio on immu-
nity grounds, and their claims challenging the outcome of the prior discipli-
nary proceedings as barred by Rooker v. Fidelity Trust Co., 263 U.S. 413, 44
S.Ct. 149, 68 L.Ed. 362 (1923). Other claims against the Justices, with
minor exception, were also dismissed. The district court, however, rejected
the defendants’ argument that the doctrines of collateral estoppel and res
judicata foreclosed Schneider's and Ramos’s claims for prospective relief
from the operation of Law No. 43 and allied statutes. The district court ex-
amined the preclusive effect that would be afforded the disciplinary pro-
ceeding by a Puerto Rico court, finding that further litigation was permissi-
ble. See Migra v. Warren City School District Board of Education, ___ U.S.
——., 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Allen v. McCurry, 449 U.S. 90,
101 S.Ct. 411, 66 L_Ed.2d 308 (1980). The parties have not challenged these
rulings, which are reported at 546 F.Supp. 1251 (D.P.R. 1982).
A-66
and intended pronouncements as falling outside of that defi-
nition.
In December 1982 the Colegio filed another informative
motion, this one notifying the Supreme Court of Puerto Rico
that it had adopted regulations creating a seven-member
board to be known as “The Review Board of the Activities of
the Colegio de Abogados of Puerto Rico.”’ The Board’s func-
tion was said to be to classify the Colegio’s activities “on the
basis of the definition of ideological activities contained in the
Informative Motion of June 25, 1982.” See above. Lawyers
who “at the time of payment of annual dues have affirma-
tively expressed their objection to the use of their money for
ideological purposes,” as defined, may file a complaint within
30 days after an action they object to. The board may sum-
marily dismiss the complaint if deemed insufficient, or it may
schedule a public hearing. After a full public hearing (and
possible appeal to the Supreme Court of Puerto Rico) the
board may grant the objector a proportionate refund from his
contribution. It may also grant similar refunds to other law-
yers who (1) have earlier indicated objection to having their
dues used for ideological ends, and (2) within 30 days have re-
quested in writing the specific refund.
Since being advised of the Colegio’s plan through the
medium of these motions, the Supreme Court of Puerto Rico
has not approved or disapproved it. However, on June 30,
1983 — two weeks after the district court decided the present
case — it issued a resolution, stating “the remedy adopted by
the Bar Association following our April 1982 opinion, is still
before our consideration pending approval, modification, or
rejection.” Then, on October 20, 1983, the court issued
another resolution inviting Schneider and Hector Ramos to
comment on the Colegio’s remedy and to propose any modifi-
cations or alternate measures. At the same time the court in-
ee
’ The first Board was elected in the fall of 1982 after balloting upon a slate
of seven names submitted to the membership: by the Colegio’s Board of
Governors. Write-ins were, however, allowed.
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vited the Colegio to comment in light of its experience with the
Review Boarc and the regulations.
The present appeal (i.e., from the judgment of the district
court) was argued before us in February 1984.
D. The District Court’s Decision
We now describe the district court’s opinion and injunction
which came down on June 16, 1983, following an evidentiary
hearing and full argument and briefing. Schneider v. Colegio
de Abogados de Puerto Rico, 565 F Supp. 963 (D.P.R. 1983).
The district court held that, without question, “the Colegio
engages in ideological and/or political activism of a pervasive
and continuous nature, totally unrelated to the stated legisla-
tive purposes for which it was created.” In support of this find-
ing, the court listed matters on which the Colegio had taken
positions, many of which are highly controversial and are
beyond the specialized concerns of lawyers. While plaintiffs
and presumably others differed from the Colegio’s position,
the court found that in annual appearances before the United
Nations Decolonization Committee the Colegio’s president has
represented as the view of “all the members of the Colegio”
that Puerto Rico is a colony of the United States. Id. at 966.
Such ideological expressions, the district court felt, were
“hardly discouraged by the Supreme Court of Puerto Rico’s
decision in Colegio de Abogados de Puerto Rico v. Schneider
...” The district court ended this portion of its opinion with
the observation “if one thing is clear in this case, it is the prolif-
eration of the Colegio’s ideological and/or political activities.”
The district court went on to hold that the Colegio was a
state actor for purposes of section 1983 — a point not now in
dispute.
And finally the district court held that the Colegio’s use of
mandatory fees for political and ideological purposes was un-
constitutional, and that the remedy structured by the Colegio
pursuant to the Supreme Court of Puerto Rico’s order, was a
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“sham.” Id. at 977. In the district court’s view, it was doubtful
whether the Supreme Court of the United States would regard
a refund remedy, such as the one approved in Abood v.
Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52
L.Ed.2d 261 (1977), as appropriate on the present facts. The
district court thought the instant situation was “light years
apart” from the labor union situation in Abood. But even if
Abood controlled, the district court found tne Colegio’s review
board regulation to fall “considerably short of the mark.” It
was “illustrative of the cynicism and bad faith with which the
Colegio has been handling the entire subject matter of the pre-
sent suits.” The court made this statement after analyzing the
elaborate procedure established by the Colegio, which it de-
scribed as merely an opportunity for the dissident “to engage
the Colegio in bureaucratic shadow-boxing.”
The district court concluded that Puerto Rico’s integrated
bar was on its face constitutional, citing Lathrop v. Donahue,
367 U.S. 820, 1 S.Ct. 1826, 6 L.Ed.2d 1191 but that the “cold
letter of these statutes” does not reflect “the true facts of life.”
“As shown, the long-standing, pernicious and massive
ideological and political practices, which have until re-
cently been tolerated sub silentio and which are presently
encouraged by the very state agencies charged with con-
trol and regulation of the integrated bar, present a very
different picture as to how Law 43 and the related stat-
utes are actually administered. These practices, we have
held, are clearly unconstitutional. Such flagrant viola-
tions of the civil rights of Plaintiffs cannot be allowed to
continue if their constitutional rights have any worth
other than one of purely academic value. ... They affect
Plaintiffs’ means of earning their livelihood in their
chosen profession, and require that the court in the pro-
tection of their rights, and because of the magnitude of
these violations, exercise its equitable powers to the full-
est extent to prevent further violations by Defendants.”
565 F.Supp. at 978.
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The district court ruled that “until such time as the Colegio
ceases to engage in ideological and/or political activism,” all
defendants except the Justices of the Supreme Court of Puerto
Rico are enjoined from taking any action of any type against
Colegio members for nonpayment of any due or fee. They
were further enjoined from denying anyone the right to prac-
tice law or engage in notarial practice by reason of their failure
to pay any due or fee to the Colegio. They were also enjoined
from selling forensic or notarial stamps on behalf of the Cole-
gic or “from forwarding to the Colegio the proceeds of any
public funds collected on behalf of or for the Colegio, includ-
ing but not limited to the sale of forensic or notarial stamps.”
Finally, these defendants were enjoined from denying full
legal validity to any pleading, public instrument or deed be-
cause they do not contain forensic or notarial stamps.
The court also issued a declaratory judgment, declaring
unconstitutional “as interpreted, enforced, and applied” vari-
ous portions of Law No. 43 and other statutes providing for the
Colegio to receive the proceeds from the sale of bar stamps.
Nominal damages of $1 each were also awarded to three of the
plaintiffs against the Colegio.
The district court refused to stay its judgment, Schneider v.
Colegio de Abogados de Puerto Rico, 572 F.Supp. 957 (D.P.R.
1983), and the Colegio appealed. This court has since stayed
the district court’s judgment pending appeal.
II.
On appeal, the Colegio argues that the district court’s
sweeping injunction, bringing all Colegio funding and activ-
ities to a halt until the Colegio withdraws from ideological and
partisan activism, protects dissenters’ tirst amendment asso-
ciational rights “not with a scalpel but with a bludgeon.”*® The
* Neither the Justices of the Supreme Court of Puerto Rico, who remained
nominal parties below, nor the Commonwealth Secretaries of the Treasury
and of Justice took appeals
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Colegio additionally argues that the district court erred “by
reaching the merits while the Supreme Court of Puerto Rico
undertakes, in pending proceedings, to fashion a remedy for
the very grievances that underlie the federal complaint.”
Appellees respond that only a remedy such as the district
court provided could suffice to protect plaintiffs, since “no
remedial system addresses coerced association,” and since the
Colegio’s proposed remedy was totally ineffective. Against
appellant’s abstention argument, appellees posit that the
Supreme Court of Puerto Rico has fully announced its posi-
tion, and has indicated no serious intention to redress the Cole-
gio’s “sham” remedy. Appellees contend this case does not fit
within the guidelines for abstention.
As we shall discuss below, we agree with appellant that the
district court should have abstained while retaining jurisdic-
tion, thus allowing the Supreme Court of Puerto Rico a rea-
sonable time within which to review the Colegio’s remedy,
and to accept, reject or modify it. We therefore vacate the
injunction without ruling on the merits of the district court’s
analysis, and direct that the district court await action by the
Puerto Rico court before proceeding to the merits of the mat-
ters before it. We do not say the district court must await in-
definitely, but we think the Supreme Court of Puerto Rico
must be allowed an opportunity to complete the process initi-
ated but not completed in its opinion of April 5, 1982.
A recent Supreme Court decision makes it plain, however,
that appellees cannot constitutionally be forced to pay full
dues to the Colegio during the interim period before this litiga-
tion is finally resolved. Ellis v. Brotherhood of Railway,
Airline & Steamship Clerks, U.S. ___, 104 S.Ct. 1883,
1889-90, 80 L.Ed.2d 428 (1984). We accordingly make provi-
sion for certain relief during the interim.
III. ABSTENTION
{1,2] We hold that the district court should have stayed its
hand in this case, pending final determination of the issues
A-7]
turning upon Puerto Rico law, as it is clear that completion of
the remedial stage of Colegio v. Schneider “might avoid in
whole or in part the necessity for federal constitutional adjudi-
cation, or at least materially alter the nature of the problem.”
Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 1030, 3
L.Ed.2d 1152 (1959) (emphasis supplied); Allegheny v. Frank
Mashuda Co., 360 U.S. 185, 189, 79 $.Ct. 1060, 1063, 3
L.Ed.2d 1163 (1959). Abstention is appropriate “where, as in
this case, the uncertain status of local law stems from the un-
settled relationship? between the state constitution and a
statute.” Harris County Commissioners Court v. Moore, 420
U.S. 77, 85, 95 S.Ct. 870, 876, 43 L.Ed.2d 32 (1975); Merid-
ian v. Southern Bell Telephone & Telegraph Co., 358 U.S.
639, 641, 79 S.Ct. 455, 457, 3 L.Ed.2d 562 (1959) (per
curiam).
The Supreme Court of Puerto Rico, in its April 5, 1982 opin-
ion, while upholding the constitutionality of Puerto Rico’s
integrated bar, held that under the Constitution of Puerto
Rico dissenting members of the bar were entitled to a pro rata
refund of dues to the extent the Colegio engaged in ideological
actions not related to the Colegio’s statutory purposes. In so
doing, the court adopted as a matter of Puerto Rico law a rem-
edy devised for dissenting workers by the Supreme Court of
the United States in closed shop labor cases. Machinists v.
Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961):
Railway Clerks v. Allen, 373 U.S. 113, 83 S.Ct. 1158, 10
L..Ed.2d 235 (1963); Abood v. Detroit Board of Education,
431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). It or-
dered the Colegio to develop a plan to implement this concept.
While citing to cases from the Supreme Court of the United
States, the Puerto Rico court reflected its own aprreeagen
interpretation of the Constitution of Puerto Rico, which,
determined, recognizes associatignal and free speech eee no
less than those in the federal Cnstitution. In ordering this
remedy, the Supreme Court of Puerto Rico acted not only
under its power to construe Puerto Rico’s constitution but
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under its inherent judicial power to determine the grounds for
admission to the bar. See note 3, supra. The latter power ex-
ceeds that of the Puerto Rico legislature in this special area,
thus the court has unique latitude to fashion a direct solution
without returning to the legislature.
The Supreme Court of Puerto Rico has yet to complete its
remedial action. While the Colegio adopted a regulation in
purported conformity with the court’s opinion, the court has
indicated that it will review that regulation. Although serious
objections can be raised to the Colegio’s proposed remedy, the
Puerto Rico court has plenary power to reject and revise the
Colegio’s action if it is so inclined for reasons of law or policy.
It could conceivably do so in such a way that plaintiffs will ob-
tain all the relief to which they are entitled under federal con-
stitutional standards.
To be sure, even if the Puerto Rico court were to insist upon
a workable Abood-style remedy, and even if it were to rethink
its position on refunds in light of the recent case of Ellis v.
Brotherhood of Railway, Airline & Steamship Clerks,
U.S. at , 104 S.Ct. at 1889-90 (which rejected the ade-
quacy of “the pure rebate approach”), plaintiffs could argue
that the Colegio’s penchant for ideological contention is so per-
vasive and unremitting — as compared with, say, the Wiscon-
sin Bar as characterized in Lathrop’ — that Puerto Rico can-
* Although we do not decide the issue here, it can be argued that Railway
Employee's Department v. Hanson, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed.
1112 (1956), followed in Lathrop, and Hanson's progeny — Street, Allen,
Abood, and now Ellis, see note 10 — are viable precedent in the bar associa-
tion context only when certain factual predicates, existing in Lathrop, are
met. In Lathrop the plurality expressly rejected plaintiff's characterization of
the Wisconsin bar association as “partak[{ing] of the character of a political
party.” 367 U.S. at 833, 81 S.Ct. at 1832. Any suggestion that it was “a sham
organization deliberately designed to further a program of political action”
was barred by the procedures adopted by the association to assure “substan-
tial unanimity” among members and to recognize views of dissenters. Id. at
834, 81 S.Ct. at 1833. (Indeed, one commentator has suggested that the will-
ingness of the plurality to uphold the constitutionality of the Wisconsin
scheme depended upon these procedural safeguards. See T. Schneyer, The
Incoherence of the ''nified Bar Concept: Generalizing from the Wisconsin
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not constitutionally force dissenters to join Alternatively,
plaintiffs might contend that a more sweeping remedy than
the Abood remedy is necessary here — for example, enforced
separation of the ideological component of the Colegio from its
“core” functions, with dissenters being compelled to join only
the latter component.'° The district court in its opinion indi-
cated that it saw the present situation as factually distinguish-
Case, 1983 A.B.F.Res.J. 1, 55-56.) These procedures, moreover, focused
bar political debate on matters “of general professional interest.” Lathrop,
367 U.S. at 834 n.9, 81 S.Ct. at 1833 n.9. The Lathrop plurality also noted
there that “legislative activity [was] not the major activity of the State Bar,”
id. at 839, 81 S.Ct. at 1835; and that “the bulk of the State Bar activities
serve the function ... of elevating the educational and ethical! standards of
the Bar to the end of improving the quality of legal service available to the
people of the state without reference to the political process.” This was a
“legitimate end of state policy” permitting compulsory dues even though the
association “engaged in some legislative activity.” Id. at 843, 81 S.Ct. at
1838. See also In re Amendment to Integration Rule of the Florida Bar, 439
So.2d 313 (Fla.Dist.Ct.App. 1983), and Report of Committee to Review the
State Bar, 334 N.W.2d 544 (Wis.Ct.App. 1983) (focusing on similar pro-
cedura! safeguards).
In the instant case, while the district court canvassed the range of the Cole-
gio’s ideological activities, it did not describe the Colegio’s other pursuits or
the proportion of resources devoted to them. We assume at this stage of the
litigation that the Colegio, like the bar association examined in Lathrop, has
a “multifaceted character, in fact as well as in conception.” Id. at 842, 81
S.Ct. at 1837.
°° To our knowledge, however, no court has held that compulsory bar
dues may never be used to further any political, or perhaps more accurately,
“legislative” purposes. See, e.g., Arrow v. Dow, 544 F.Supp. 458, 463
(D.N.M. 1982) (striking compulsory support for certain lobbying while
“declin[ing] to hold categorically that the Bar is prohibited from spending
bar dues for lobbying”); Report of Committee to Review the State Bar, 334
N.W.2d 544 (Wis. 1983) (accepting committee recommendation to impose
rebate system, without deciding whether such system was constitutionally
mandated); see also Falk v. State Bar of Michigan, 418 Mich. 270, 342
N.W.2d 504 (1983), 411 Mich. 63, 305 N.W.2d 201 (Mich. 1981) (failing to
reach consensus on issue). In Lathrop Justices Harlan and Frankfurter ap-
proved the use of such dues to support “legislative activities” where the super-
vising state court had restricted these activities to “the more technical areas of
the law into which no well-advised layman would venture without the
assistance of counsel,” 367 U.S. at 861, 864, 81 S.Ct. at 1849; their position,
however, did not command a majority of the Court.
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able. (It did not, however, expressly attempt to distinguish
Lathrop.)
Nonetheless, while even provision of a remedy in complete
compliance with Abood and its progeny would not necessarily
signal the end of plaintiffs’ federal case, it would surely
transform it. As the Colegio points out, existing law to date
upholds the concept of integrated bars, and the only dissenters’
remedy yet addressed by the United States Supreme Court
(although in a different context) is the reduction in dues dis-
cussed in Abood, and, most recently, in Ellis v. Brotherhood of
Railway, Airline & Steamship Clerks, __ U.S. at , 104
S.Ct. at 1889-90.'' If such a remedy were truly afforded, the
Colegio could argue (although we think it premature for us to
indicate whether or not we would accept the argument, and
do not do so here) that the federal Constitution was satisfied.
Conversely, of course, to the extent whatever remedy the
Supreme Court of Puerto Rico approves falls short even of the
standards established in Abood and Ellis, plaintiffs will have a
different, more specific and more powerful federal constitu-
tional claim.
Our point is simply that until the Supreme Court of Puerto
Rico acts, or at least shows that no further action can be ex-
pected, the dimension of the constitutional issue for federal
adjudication will remain unsettled. For that reason alone,
there is good reason for the federal court to stay its hand while
retaining jurisdiction. Harrison v. NAACP, 360 U.S. at 177,
79 S.Ct. at 1030.
[3] The argument for abstention is also greatly strength-
ened by several special factors. First, as noted, a state proceed-
ing is already in being.
Where there is an action pending in state court that will
likely resolve the state-law questions underlying the fed-
'! Ellis held that a “pure rebate approach is inadequate” under section 2,
Eleventh of the Railway Labor Act, 45 U.S.C. § 152, Eleventh, given “ac-
ceptable alternatives” “such as advance reduction of dues and/or interest
bearing escrow accounts. "___ *U-.S. at __, 104 S.Ct. at 1889-90.
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eral claim, [the Supreme Court has] regularly ordered
abstention. See Askew v. Hargrave, [401 U.S. 476, 91
S.Ct. 856, 28 L.Ed.2d 196 (1971)]; Albertson v. Millard,
345 U.S. 242 [73 S.Ct. 609, 97 L.Ed. 983] (1953);
Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 173 [62
S.Ct. 986, 988, 86 L.Ed. 1355] (1942); cf. Meredith v.
“Winter Haven, 320 U.S. 228, 236 [64 S.Ct. 7, 11 88
L.Ed. 9] (1943).
Harris County Commissioners Court v. Moore, 420 U.S. 77,
83, 95 S.Ct. 870, 874, 43 L.Ed.2d 32 (1975). Indeed, in the
cases cited the state court proceeding typically started after the
federal action and in one case at least, was initiated by parties
unrelated to the claimant in the federal case. Askew v.
Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971).
Of course, serious delays in the litigation may argue against
abstention. See Harris County Commissioners Court, 420 U.S.
at 84, 95 S.Ct. at 875. But here the Colegio argues that delays
in the Commonwealth proceeding were tied to the progress of
this action. We note, moreover, that plaintiffs have appa-
rently refused to provide to the Puerto Rico tribunal meaning-
ful comment on the Colegio’s proposed remedy based upon the
Commonwealth’s Constitution. When asked for their recom-
mendations on that matter, Schneider and Hector Ramos an-
swered, “without accepting nor submitting to the jurisdiction
of the Honorable Supreme Court,” that since the court had re-
jected their arguments in adopting its opinion, “there is no
reason nor justification in law to require that [they] once again
formulate their commentaries and objections” as to the Cole-
gio’s proposal.
A second special factor supporting abstention is the unique
role of the Supreme Court of Puerto Rico in a proceeding of
this nature, a role which makes it especially desirable for the
federal courts to allow it to act before they consider step-
ping in.
A-76
{[W]hen the state-law questions have concerned matters
peculiarly within the province of local courts, see Reitz v.
Bozanich, [397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68
(1970)]; Fornaris v. Ridge Tool Co., 400 U.S. 41 [91
S.Ct. 156, 27 L.Ed.2d 174] (1970); cf. Louisiana Power
& Light Co. v. City of Thibodaux, 360 U.S. 25 [79 S.Ct.
1070, 3 L.Ed.2d 1058] (1959), [the Supreme Court has]
inclined towards abstention.
Harrie County Commissioners Court, 420 U.S. at 84, 95 S.Ct.
at 875. As already mentioned, the Supreme Court of Puerto
Rico not only may exercise its usual judicial powers but, be-
cause of its inherent power over the bar, can also act outside
the relevant statutes. Thus it is not limited, as a federal court
is, merely to striking down unconstitutional statutory provi-
sions. Rather, it can directly fashion relief, so as to rectify an
otherwise unconstitutional provision relating to bar member-
ship. Were the Supreme Court of Puerto Rico persuaded that
the dissenters’ remedy it previously suggested was no longer
sufficient in light of Ellis or other considerations, it could take
a different tack, even going so far as to order the Colegio to
leave the taking of public positions on matters unrelated to the
Colegio’s cor
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