ROSSELLO V. CALDERON- DECISION DE 1ER CIRCUITO DE BOSTON
For the First Circuit
No. 04-2610
PEDRO J. ROSSELLÓ-GONZÁLEZ; LUIS FORTUÑO; MIRIAM RAMÍREZ;
NANETTE GUEVARA; ARNOLD GIL-CARABALLO; LARRY SEILHAMER;
JOSÉ SÁNCHEZ; JUAN F. RAMÍREZ AND JAVIER RODRÍGUEZ-HORTA,
Plaintiffs, Appellees,
v.
SILA M. CALDERÓN-SERRA,
individually and in her capacity as
GOVERNOR OF
GOVERNMENT TRANSITION COMMITTEE;
GERARDO A. CRUZ, individually
and in his capacity as a
member of the
Puerto Rico Electoral Commission,
Defendants, Appellants.
No. 04-2611
PEDRO J. ROSSELLÓ-GONZÁLEZ; LUIS FORTUÑO; MIRIAM RAMÍREZ;
NANETTE GUEVARA; ARNOLD GIL-CARABALLO; LARRY SEILHAMER;
JOSÉ SÁNCHEZ; JUAN F. RAMÍREZ AND JAVIER RODRÍGUEZ-HORTA,
Plaintiffs, Appellees,
v.
THE
ELECTION COMMISSION; AURELIO
GRACIA-MORALES, individually
and in his capacity as
PRESIDENT OF THE PUERTO RICO ELECTORAL
COMMISSION; THOMAS RIVERA-SCHATZ,
individually and in his
capacity as a member of the Puerto
Rico Electoral Commission;
JUAN DALMAU-RAMÍREZ, individually
and in his capacity as a
member of the Puerto Rico
Electoral Commission,
Defendants, Appellants.
No. 04-2612
IN RE GERARDO A. CRUZ,
Petitioner.
No. 04-2613
IN RE STATE ELECTIONS COMMISSION,
Petitioner.
APPEALS FROM THE UNITED STATES
DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez,
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
María Soledad Piñeiro, argued on behalf of respondents Manuel R. Suárez-Jiménez, Enid Abreu-Zurinaga, José A. Alvarez-Febles and Liany Fernández-Toledo.
Rafael Escalera-Rodríguez, argued on behalf of
petitioners Gerardo A. Cruz and the State Elections Commission.
Richard H. Pildes, Professor of Law, New York
University School of Law, with whom Pedro A. Delgado-Hernández,
Ramón L. Walker-Merino, Eileen Marie García-Wirshing,
and O'Neill & Borges, were on brief, for appellants The Puerto Rico
Electoral Commission and Aurelio Gracia-Morales.
Charles J. Cooper, with whom Brian S. Koukoutchos,
Vincent J. Colatriano, Derek L. Shaffer,
Nicole J. Moss, and Cooper & Kirk, PLLC, were on brief, for
appellant Aníbal Acevedo-Vilá.
Theodore B. Olson, with whom Miguel A. Estrada, Andrew S. Tulumello, Matthew D. McGill, Gibson Dunn
& Crutcher LLP, James F. Hibey, William R. Sherman, Howrey
Simon Arnold & White, LLP, Joseph D. Steinfield,
Prince, Lobel, Glovsky
& Tye, LLP, Luis Berríos-Amadeo, Andrés W. López, The Law Offices of Andrés
W. López, Andrés
Guillemard-Noble, Nachman
& Guillemard, Charles A. Rodríguez,
and David C. Indiano, were on brief, for appellees.
Rafael Escalera-Rodríguez, Néstor
J. Navas-D'Acosta, Reichard
& Escalera, Zuleika
Llovet-Zurinaga, Carlos E. López-López,
and Llovet Zurinaga
& López, PSC, were on brief, for appellant
The Honorable Sila M. Calderón.
Pedro E. Ortiz-Álvarez, with whom Johanna
Emmanuelli-Huertas, Jorge Martínez-Luciano,
Gina Ismalia Gutiérrez-Galang,
and the Law Offices of Pedro E. Ortiz-Álvarez, PSC,
were on brief, for appellant Gerardo A. Cruz.
Luis Sánchez-Betances, with whom Gerardo
De Jesús-Annoni, and Sánchez
Betances & Sifre, P.S.C., were on brief, for
appellant The Incoming Transition Committee.
December 15, 2004
TORRUELLA, Circuit Judge; STAHL, Senior
Circuit Judge; and HOWARD, Circuit Judge. The
Plaintiffs-Appellees include NPP candidate Rosselló
and a number of voters who voted for him in the
Also
part of this appeal is an action filed on November 16, 2004 in the Court
of First Instance for San Juan, Puerto Rico, the local trial court, by four
voters (collectively, "the Suárez
Plaintiffs") who claim to have cast, and want to establish the validity
of, the ballots at issue in the Rosselló action
("the Suárez action"). (3) After the Court of
First Instance dismissed the Suárez action on
I. BACKGROUND
A. The
On
The
ballot instructed voters to vote for only one candidate for Governor and one
for Resident Commissioner. On election day, voters filled in the ballots in the
following ways: (1) by placing a mark under a party insignia, thereby voting
for all of the candidates in that party's column ("a straight vote");
(2) by placing a mark next to the name of each desired candidate but not under
a party insignia; (3) by placing a mark under a party insignia and next to a
desired candidate of a party other than the one that had its insignia
previously marked; (5) or (4) by placing a
mark under a party insignia and marks next to two desired candidates associated
with a party or parties other than the one that had its insignia previously
marked ("a three-mark split vote"). (6)
Prior
to the
Over
two million votes were cast in the
During
the election, thousands of three-mark split vote ballots -- as many as 28,000
-- were cast. Apparently, the vast majority of these ballots contained a mark
under the insignia of the PIP and marks next to the two PDP candidates. (11)
A
number of the three-mark ballots were adjudicated at the polling centers on
election night. (12) And, for the first two or three days of the general
canvass, which began on November 8, 2004, some of the three-mark ballots that
had been contested at the polling centers, and thus, had not been adjudicated,
were determined to be valid. But, on
1. The Federal and State Court Actions
On
November 10, 2004, the Rosselló Plaintiffs filed a
complaint against the Acevedo Defendants in the District Court that asserted
various federal constitutional claims under 42 U.S.C. § 1983 arising out
of the November 2, 2004 election. On
Meanwhile,
on
The
Court of First Instance dismissed the Suárez action
without prejudice on
Despite
the removal, the Supreme Court purported to enter a judgment on the Suárez action on the evening of
On
II. THE PETITIONS FOR MANDAMUS
We
begin with the two Emergency Petitions for Writ of Mandamus that request we
exercise our power of mandamus and instruct the District Court to remand the Suárez case to the
We
note at the outset that we have given the District Court ample opportunity to
decide whether removal of the Suárez action was
proper, and despite the time-sensitive nature of this case, and three weeks of
hearings on the merits of the Rosselló action which
has been consolidated with this case for appeal, we are now faced with the
extreme decision of whether we should compel remand through a Writ of Mandamus.
In
order to stave off the need for mandamus, we invited the District Court to
address these mandamus petitions. In response, the court appended a footnote to
his opinion of
Following
a hearing on
A. Availability of Mandamus
Although
it is an extraordinary remedy, mandamus can be appropriate in those rare cases
in which the issuance (or non-issuance) of an order (1) raises a question about
the limits of judicial power, (2) poses a risk of irreparable harm to the
appellant, and (3) is plainly erroneous. See Christopher v. Stanley-Bostich, Inc., 240 F.3d
95, 99 (1st Cir. 2001). Moreover, "the case for mandamus is
particularly compelling where the order poses an elemental question of judicial
authority."
B. Validity of Removal
We
find that the exercise of removal jurisdiction is plainly erroneous in this
case because no federal question was presented in the Suárez
action either procedurally (because the four corners of the complaint do not
plead a federal question) or substantively (because we have decided in the Rosselló action that the federal courts will not intervene
in a local electoral dispute). Because we find that remand to the Puerto Rico
Supreme Court is necessary due to the absence of a federal question, we do not
address the petitioners' second argument, that removal was improper because it
did not receive the consent of all defendants to the Suárez
action.
1. Well-Pleaded Complaint Rule
A
case may be removed to federal court if it presents a "claim or right
arising under the Constitution, treaties or laws of the
Read
as a whole, we cannot say that this complaint presents a claim under the
federal Constitution. No explicit reference to the United States Constitution
or any other federal law is contained in the complaint; instead, all references
are to
Moreover,
it is well-settled that "the plaintiff [is] the master of the claim; he or
she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar Inc. v. Williams, 482
2. Artful Pleading Doctrine
The
Respondents invite this court to consider the possibility that the Suárez plaintiffs engaged in artful pleading, a
"corollary of the well-pleaded complaint rule that a plaintiff may not
defeat removal by omitting to plead necessary federal questions in a
complaint." Franchise Tax Bd., 463
3. Federal Ingredient
Respondents
also argue that even in the absence of a claim arising under federal law on the
face of plaintiffs' well-pleaded complaint, federal removal jurisdiction is
still proper under the Supreme Court's statement in Franchise Tax Board
that removal would be appropriate "if a well-pleaded complaint established
that [the plaintiff's] right to relief under state law requires resolution of a
substantial question of federal law." 463
Federal
ingredient jurisdiction remains "controversial," Almond v. Capital
Properties, Inc., 212 F.3d 20, 23 (1st Cir. 2000), because
[t]he
Supreme Court has periodically affirmed this basis for jurisdiction in the abstract . . ., occasionally cast doubt upon it,
rarely applied it in practice, and left the very scope of the concept unclear.
Perhaps the best one can say is that this basis endures in principle but should
be applied with caution and various qualifications.
Respondents
hang their jurisdictional hat on two doctrines that they allege exist in the caselaw of the Puerto Rico Supreme Court. The first stems
from the Puerto Rico Supreme Court's statements in a 1964 case that, in
accepting the Commonwealth's Bill of Rights, the United States Congress
"was to presume -- and in fact it is so and ought to be -- that the public
powers and the courts of the Commonwealth shall render effective and construe
the provisions of the [Puerto Rico] Bill of Rights in a manner consistent with
the protection afforded . . . by the same or similar provisions of the
Constitution of the United States." R.C.A.
Communications, Inc. v. Gov't of the
Capital, 91 P.R.R. 404, 414-15 (P.R. 1964). The second comes into
play when a federal court certifies a question of state law to the Puerto Rican
Supreme Court. According to the Supreme Court:
[W]hen
the question before us refers to the validity of a state law under a clause of
the state constitution that is similar to a clause in the federal Constitution
. . . the issue is a mixed question of federal and state rights that must be
resolved by the federal court, because the validity of the statute under the
federal Constitution necessarily disposes of the question under state law. . .
. In these circumstances we must refuse certification, since our decision would
be only advisory.
Pan Am. Computer Corp. v. Data Gen. Corp., 112
D.P.R. 780, 793-94 (1982). According to Respondents, these two provisions mean
that the Supreme Court's evaluation of the Suárez
plaintiffs' claims under the due process and equal protection doctrines of the
Commonwealth Constitution will require the resolution of a federal
question: whether the parallel provisions of the United States Constitution
would be violated by the acts in question. Accordingly, Respondents argue, the
federal district court has removal jurisdiction under the federal ingredient
doctrine.
These
arguments fundamentally misconstrue the federal ingredient doctrine. Whether a
state court will adopt as the meaning of the state's constitution the federal
courts' interpretation of parallel language in the United States Constitution
is a matter of state law. See, e.g., Nieves,
7 F.3d at 274. Federal law does not compel such an outcome. Thus, a
determination of whether a violation of the Puerto Rican Constitution's
guarantees of due process and equal protection has occurred does not "require
resolution" of whether the conduct complained of would violate the federal
Constitution. Franchise Tax Bd., 463
4. Effect of the Rosselló Decision
Lastly,
and perhaps most significantly, the Suárez complaint
cannot be said to state a federal question, because, as we will discuss now,
the federal courts will not intervene in a local electoral dispute such as
this. Although we find that it was plain error for the District Court not to
remand the Suárez case back to the Puerto Rico courts
on the basis of the well-pleaded complaint rule, and therefore we could issue a
Writ of Mandamus compelling remand, we realize that the District Court now has
the benefit of both our above discussion and our decision in the Rosselló action. Therefore, we are confident that the
District Court will immediately remand the Suárez
case back to the Supreme Court of Puerto Rico without the need for mandamus.
III. APPEAL OF THE NON-ADJUDICATION
ORDER
We
now turn to the appeal of the non-adjudication order that is before us in
connection with the Rosselló action. We have
repeatedly held that federal courts "normally may not . . . undertake the
resolution of 'garden variety election irregularities.'" Bonas v. Town of
A. Nature of Our Review
The
Acevedo Defendants are presently before us seeking review of the District
Court's issuance of a preliminary injunction to segregate, but not adjudicate,
all three-mark split vote ballots cast during the
B. Temporary Injunctions to Preserve Jurisdiction
Congress
has provided "[t]he Supreme Court and all courts established by Act of
Congress [with the authority to] issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the usages and
principles of law." 28 U.S.C. § 1651(a). Acting
pursuant to § 1651(a), a federal court may issue an injunction as a means to
preserve its jurisdiction. See, e.g., Klay v. United Healthgroup,
Inc., 376 F.3d 1092, 1099 (11th Cir. 2004). But, for a court to
invoke § 1651(a) and issue an injunction to protect its jurisdiction over an
action, there must be at least the possibility that the complaint states a justiciable federal claim. Thus, implicit in our review of
the issuance of the injunction is our review of whether the Rosselló
Complaint, taking all claims alleged therein as proven, had the potential to
present a justiciable federal claim under existing
Circuit precedent. Mercury Motor Express, Inc. v. Brinke,
475 F.2d 1086, 1091 (5th Cir. 1973) ("Once a case is lawfully before a
court of appeals, it does not lack power to do what plainly ought to be done. .
. . [It has] the power . . . to reach the merits of a case before it on an
interlocutory appeal and [to] dismiss the action.") (internal
quotation marks, alterations, and citations omitted); see also Aerojet-Gen. Corp. v. Am. Arbitration Ass'n, 478 F.2d 248, 252 (9th Cir. 1973) ("[I]t is
well established that in [an equity] case, . . . an interlocutory appeal brings
the entire case before the court.").
Our
review is for abuse of discretion. Klay, 376 F.3d at 1096.
C. Federal Jurisdiction Over § 1983 Complaints
Having
determined that we must inquire whether the District Court should have
intervened in this local election dispute based on the claims alleged in the
complaint, our first step necessarily begins at the broadest level -- that is,
whether the District Court had federal subject matter jurisdiction over the
action. See Bonas, 265
F.3d at 73. "Federal courts are courts of limited jurisdiction, and
therefore must be certain that they have explicit authority to decide a
case." Bonas, 265 F.3d at 73 (citing
In
There
is no doubt that the Rosselló Complaint alleges the
violation of a constitutionally guaranteed right, and thus, presents a
colorable claim under § 1983 for subject-matter-jurisdiction purposes. The
federal Constitution protects the right of all qualified citizens to vote in
local elections. See Bonas, 265 F.3d at 74. This conclusion, however, does not end our
inquiry. Having determined that the District Court could have exercised
jurisdiction in this case, we must now inquire whether it should have
intervened. See
As
mentioned above, and discussed more extensively below, "[e]lection law, as
it pertains to state and local elections, is for the most part a preserve that
lies within the exclusive competence of the [local] courts." Bonas, 265 F.3d at 74. We
have thus stated that "with only a few narrow and well-defined exceptions,
federal courts are not authorized to meddle in local elections."
D. District Court's Decision to Intervene
As
discussed above, we review the decision of the District Court to intervene in
this local election dispute for abuse of discretion. Klay,
376 F.3d at 1096. In evaluating whether federal
intervention into a local election dispute is appropriate, this Court has
inquired into factors such as whether a discrete group of voters has been
disenfranchised, whether there was a state process in place to handle the
question posed by the plaintiffs, and whether the plaintiffs had availed
themselves of that state process. See Griffin, 570 F.2d at
1078-79; Bonas, 265 F.3d at 75-76; see also
Barreto Pérez,
639 F.2d at 828. As we stated in Bonas,
however, "[w]e do not pretend that it is a simple matter to segregate the
run-of-the-mill electoral disputes from those that appropriately can be
characterized as harbingers of patent and fundamental fairness." 265 F.3d at 75. Indeed, "each case must be evaluated on
its own facts." Bonas, 265
F.3d at 75. But, as this Court implied in Barreto
Pérez, there is a heavy presumption in favor of
non-intervention if the party requesting intervention cannot show that a
discrete group of voters has been disenfranchised by the challenged local
action. See 639 F.2d at 828.
Here,
the final decision under
In
In
Bonas v. Town of North Smithfield, this
Court held that complete disenfranchisement of all voters, by a municipality's
decision not to hold a municipal election at all, warranted federal
intervention. See 265 F.3d at 75-76. In that case,
after the voters of North Smithfield, Rhode Island agreed in a 1998 referendum
to transition the Town from an odd-year election cycle to an even-year cycle,
with the first even-year election to take place in 2002, town officials,
without authorization, held the 1999 election, but held no election in either
2000 or 2001, effectively disenfranchising all persons eligible to vote in the
2001 municipal election. Bonas, 265 F.3d at 71-72.
In
Partido Nuevo Progresista
v. Barreto Pérez,
639 F.2d 825 (1st Cir. 1980), however, this Court determined that federal
intervention was inappropriate in a case challenging the decision of the
Supreme Court of Puerto Rico where "[the] case [did] not involve a state
court order that dis enfranchise[d] voters; rather it
involve[d] a Commonwealth decision that en franchise[d] them." 639 F.2d at 828. That case is remarkably similar to the case
at hand. In that case, the disputed ballots contained marks outside the
designated spaces and squares, and therefore were allegedly invalid under the
literal terms of Article 1.033(b) of the Electoral Law of Puerto Rico, which
provided that stray marks such as the ones on the disputed ballots "shall
be null and void, and deemed unmarked." See Barreto
Pérez, 639 F.2d at 826.
The Administrator of the Election Commission ruled the ballots invalid, and his
decision was upheld on appeal by the Electoral Review Board. See Barreto Pérez, 639 F.2d at 826. The Supreme Court of Puerto Rico reversed,
finding that despite 16 L.P.R.A. § 3033(b)'s literal prohibition of counting
such mismarked ballots, the provision could be
construed as permitting the tallying of such ballots where the "intent of
the voter was clear." See Barreto
Pérez, 639 F.2d at 826 (discussing Popular
Democratic Party v. State Elections Commission, 507 F. Supp. 1164
(D. P.R. 1980)). The PNP subsequently brought suit in federal court pursuant to
§ 1983, alleging that the Supreme Court of Puerto Rico's
"retroactive" changing of the law after an election violated the
plaintiffs' rights not to be deprived of their liberty and First Amendment
rights without procedural and substantive due process of law. Barreto Pérez, 639 F.2d 827. The district court agreed, stating that
"[i]n our opinion the lesson to be learned from Griffin
is[] that changing the rules of the game after it has been played and the score
is known, violates fundamental rules of fair play." Popular
Democratic Party, 507 F. Supp. at 1174. It found that the
"counting of ballots after an election which, under the rules prevalent at
the time of the vote-casting were considered void and invalid, [was] the
practical and functional equivalent of alteration of ballots or of stuffing the
ballot box." Barreto Pérez, 507 F. Supp. at 1174.
On appeal, this Court disagreed. See Barreto
Pérez, 639 F.2d at 828.
We
emphasized that unlike in
The
case presented by the Rosselló Plaintiffs, even
assuming that all claims alleged in their complaint could be proven, presents
even less cause for federal intervention than the circumstances which we found
lacking in Barrreto Pérez.
Here, there is no clearly articulated Commonwealth policy, much less a statute,
to indicate the three-mark split vote ballots were invalid. At most, the
decision of the Commission merely clarified previously unsettled law.
Furthermore, this case is distinguishable from
IV. CONCLUSION
For
the above reasons:
The
Petitions for Writ of Mandamus are DENIED, as the District Court
has no choice but to remand the Suárez case to the
Supreme Court of Puerto Rico in light our disposition of the Rosselló appeal.
We
VACATE the issuance of the preliminary injunction with the
direction that the District Court dismiss with
prejudice all claims in the Rosselló complaint
relating to the adjudication of the three-mark ballots, and all claims relating
to the simultaneous general canvass/recount issue. The District Court is also
directed to dismiss without prejudice the claims relating to the absentee
ballots, and any alleged violations of Puerto Rico Law 197.
Because
the supplemental materials proffered by the appellants are unnecessary to our
decision, the motions to supplement the record on appeal are DENIED AS
MOOT. We likewise DENY the appellees'
request for judicial notice.
Leave
to file an amicus brief is GRANTED to the Puerto Rico Association
of Mayors, the Puerto Rico Commonwealth Employee Association and the Board of
Directors of Cumbre Social, the Colegio
de Abogados de
Any
petition for rehearing or rehearing en banc must be filed no later than
12
"Concurrence opinion to
follow"
TORRUELLA, Circuit Judge (in additional concurrence).
Although
I shared equally with my colleagues in analyzing the law and determining the
outcome of these cases, I find it appropriate to set forth some additional
observations in light of the circumstances surrounding these appeals.
Although,
as expressed in our panel opinion, our circuit precedents in Griffin, Barreto Pérez, and Bonas finally decide the issue that the district
court should not have intervened in this case, I wish to point out that this
conclusion is based on the particular facts of this case, which makes Bush
v. Gore, 531 U.S. 98 (2000), inapplicable. The present circumstances do
not support a justiciable federal vote-dilution claim
by voters who cast ballots that were clearly valid under rules changed after
the election. See Bush, 531 U.S. at 106-107 (criticizing as
inconsistent with equal protection Miami-Dade County's alteration, during
recount, between 1990 rules for ballot validity and new, ad hoc
rules). What happened here was not a change in the
More
important in my opinion, the preeminent truth to be gleaned from the Bush
opinion is that the United States is, first and foremost, a nation of laws and
that the meaning of these laws is interpreted by the courts, whose rulings
become the Law of the Land. Thus, notwithstanding the unprecedented nature of
the Bush v. Gore decision, issued in the face of a very divided nation, its binding finality was accepted by
the citizenry as a whole, irrespective of individual or collective disagreement
with its outcome. Although undoubtedly there was much dissonance, as there may
well presently be in
[c]ompliance with decisions of [the judiciary], as the
constitutional organ [interpreting] the supreme Law of the Land, has often,
throughout our history, depended on active support by state and local authorities.
It presupposes such support.
Cooper v. Aaron, 358
Indeed,
the basic principle articulated by Justice Frankfurter in Cooper is so
foundational to our political system that it is literally set in stone on the
very walls of this federal courthouse: "[T]he responsibility of those who
exercise power in a democratic government is not to reflect inflamed public
feeling but to help form its understanding . . . ."
[F]rom their own experience and their deep reading in history,
the Founders knew that Law alone saves a society from being rent by internecine
strife or ruled by mere brute power however disguised . . . . The duty to abstain
from resistance to "the supreme Law of the Land" . . . as declared by
the organ of our Government for ascertaining it, does not require immediate
approval of it nor does it deny the right of dissent. Criticism need not be
stilled. [However] active obstruction or defiance is barred . . . .
As
important as the outcome of this election may presently be, there are more
fundamental issues at stake.
"Concurrence to
follow."
HOWARD, Circuit Judge (in additional concurrence).
I
have joined in the court's disposition of these cases. I am less sure about our
resolution of certain, discrete issues raised by the Rosselló
appeal, and I identify those concerns here.
1.
The district court did not categorize the order preventing the Commission from
adjudicating the ballots. See Fed. R. Civ. P. 65(d); Ben David v. Travisono,
495 F.2d 562, 563 (1st Cir. 1974). As I see it, the order might
plausibly be characterized as an All Writs Act Injunction, a traditional
injunction under Fed. R. Civ. P. 65,
or a case management order. Under the first two possibilities, we have
appellate jurisdiction under 28 U.S.C. § 1292(a)(1);
under the third we do not. See Matter of City of
In
the end, we need not decide this issue. Even if the order is properly
characterized as only a case management directive, we are entitled to review it
under our mandamus power. See Ramírez
v. Rivera-Dueño, 861 F.2d
328, 334 (1st Cir. 1988). In my view, we should do so, given the
jurisdictional issue at the heart of this case, the coercive and intrusive
nature of the order, the federalism and comity concerns that it raises, and the
highly charged circumstances in which it was issued. And because the question
of the order's propriety cannot be decided without an analysis of whether the Rosselló action is justiciable,
I concur in the decision to proceed directly to the merits and to order the
action dismissed.
2.
Notwithstanding our statement that the district court has federal question
jurisdiction over the case, we have concluded that the district court abused
its discretion by asserting jurisdiction over it. I would rather we
characterize the matter somewhat differently. There is no question, of course,
that the district court has subject matter jurisdiction of a federal civil
rights claim pleaded under 42 U.S.C. § 1983. The issue is whether the pleaded
federal claim is justiciable. This question is not a
matter of discretion; it is an issue of law. See Bonas v.
Town of
3.
Finally, citing Partido Nuevo Progresiva v. Barreto
Pérez, 639 F.2d 825, 827-28 (1st Cir. 1980), we
have emphasized that the "change of rules" claim fails because, even
if there was such a change, it would result in enfranchising some voters rather
than disenfranchising them. But after Bush v. Gore, 531 U.S. 98
(2000), I cannot discount the possibility that a viable federal vote-dilution
claim might lie in some circumstances where a post-election rule change has the
effect of causing previously invalid ballots to be adjudicated. I do, however,
think that the vote-dilution claims pleaded in this case were properly rejected
because I agree with Judge Torruella that, on the
pleadings and the record, only one conclusion is possible: the Commission's
ruling involved only the clarification of previously unsettled law.
In my view, this is not a "change in the rules" sufficient to
implicate federal interests.
Footnotes
1. Luis Fortuño, the NPP
candidate for Resident Commissioner, is also a Plaintiff-Appellee.
2. Acevedo's Incoming
Government Transition Committee is likewise a Defendant-Appellant.
3. The following are the
defendants in the Suárez action: (1) the Commission,
(2) the president of the Commission, (3) the three commissioners, (4) Rosselló, and (5) the NPP.
4. The Resident
Commissioner is
5. The Commission has
determined that such a ballot reflects a vote for the desired candidate and the
remaining candidate under the party insignia.
6. As determined by the
Commission, see infra, a three-mark split vote ballot reflects a
vote for the two marked candidates, as well as a vote for the party. A vote for
a party on a three-mark ballot is credited to the party itself (and not to any
of its candidates) for purposes of its reclassification as a "principal
party," which entitles it to certain benefits, including the right to
receive funding. See 16 P.R. Laws Ann. §§ 3003; 3116. A party is a
principal party if, for example, it "obtained a number of votes under . .
. its insignia on the ballot of Governor and Resident Commissioner[] of not
less [than] seven (7) percent of the total number of votes cast for all the
parties' insignias in the preceding general election." § 3003(42) (second
alteration in original).
7. See 16 P.R. Laws Ann. §§
3007(k), 3013(l).
8. Each ballot was to be
adjudicated by a group of three inspectors, consisting of one representative
from each of the three principal parties. If the inspectors were unable to
agree, there were additional levels of review at each polling location. The
adjudicatory bodies at each level were comprised of one representative from
each of the three principal parties.
9. Although this is a
somewhat simplified account of the general canvass procedures, the omitted
details are irrelevant to this appeal.
10. "Any party affected
by a resolution, ruling or order of the [] Commission may, within the ten (10)
days following the notice thereof, appeal to the Court of First Instance . . .
." 16 P.R. Laws Ann. § 3016a.
11. It has been alleged that,
on some of the three-mark split vote ballots: (1) the mark under the PIP
insignia was made in pencil while the marks next to the PDP candidates were
made in pen; and (2) the marks next to the PDP candidates were noticeably
dissimilar from the mark made under the PIP insignia.
12. There is, however, a
dispute as to whether these ballots were adjudicated in a consistent fashion.
It has been alleged that some of the ballots were declared void, some were
adjudicated as containing valid straight votes for the PIP candidates, and some
were adjudicated as containing valid split votes for the PDP candidates, as
well as the PIP.
13. The Rosselló
Plaintiffs, by their own concession, "have achieved complete and
substantial relief" on this claim, and therefore, we need not give it any
further consideration.
14. The Rosselló
Plaintiffs have conceded, both in their opening brief and at oral argument,
that they "have achieved complete and substantial relief" from the
Commission with respect to this claim. To be sure, there is still a question as
to whether the Commission will follow through with the relief it has promised.
But, any claim concerning this open question is not yet ripe.
15. In addition, the Rosselló Plaintiffs have alleged that the Commission
violated their constitutional rights when it made "substantial
changes" to the rules governing the election after the votes had been
cast.
16. The Rosselló
Plaintiffs also sought injunctive and declaratory relief in connection with
their claim that Puerto Rico Law No. 197, 1 P.R. Laws Ann. §§ 456 et seq.,
"is unconstitutional to the extent that it purports to authorize or allow
the transition process [for the next governor] to proceed before the next
governor . . . has been determined." We need not address this issue. The
District Court denied preliminary injunctive relief on this claim, and the Rosselló Plaintiffs did not bother to appeal that ruling.
Moreover, whether Law No. 197 allows the transition process to go forward
during a recount is a question of local law that will soon be mooted by the
recount.
17. We note that the Rosselló Plaintiffs chose to challenge the decisions of the
Commission in federal court rather than exercise their statutory right to
appeal to the Court of First Instance. See 16 P.R. Laws Ann. § 3016a.
18. The Suárez
Plaintiffs also sought declaratory and injunctive relief requiring the
Commission to (1) complete the general canvass before conducting a recount and
(2) certify the winning gubernatorial candidate by
19. The Suárez
Plaintiffs filed this action even though the Commission had already decided
that the three-mark ballots are valid.
20. Significantly, the
commissioner of the NPP, a defendant in the Suárez
action, had requested dismissal on several grounds, one of which was lack of
jurisdiction because the Commission had already adjudicated the contested
ballots as valid.
21. Because of the
disposition of the removal issue on other grounds, we need not address the
alleged procedural defects.
22. We agree with the
District Court that the Supreme Court's judgment was void. The governing
statute provides that the filing of "a copy of the notice [of removal]
with the clerk of [the] State court . . . effect[s] the removal and the
State court shall proceed no further unless and until the case is
remanded." 28 U.S.C. § 1446(d) (emphasis added). The Supreme Court
received notice of the removal at
23. We address the
applicability of Bonas below in our discussion
of the Rosselló action.
24. Respondents also note
that the Suárez complaint attached and made
reference to the complaint filed four days earlier in federal court by Rosselló. No federal claim can be inferred from this
reference to the federal action; rather, it was included in the Suárez complaint as factual background. See Suárez complaint at para. 8. Further, even assuming it is proper for us
to look outside the four corners of the Suárez
complaint to the previously-filed federal action, as we discuss below, the Rosselló Complaint does not state a claim warranting
federal intervention into this local electoral dispute, and therefore cannot be
considered sufficiently substantial to give rise to removal jurisdiction under Franchise
Tax Board. See Almond v. Capital Props.,
Inc., 212 F.3d 20, 23 (1st Cir. 2003).
25. We are aware of only one
other case dealing with federal removal jurisdiction over a claim filed in
state court with ambiguous references to constitutional provisions. In Dardeau v. West Orange-Grove Consolidated I.S.D.,
43 F. Supp. 2d 722 (E. D.Tex. 1999), a federal
district court evaluated a situation very much like the one we face here. In Dardeau, a complaint was filed in state court that
made explicit reference only to state law, but also claimed a violation of
"due process." Ambiguity with regard to the source of this right was
heightened relative to our case because, while those words appear in the United
States Constitution, the Texas Constitution uses the phrase "due course of
law."
26. Although we are
skeptical that the only purpose or effect of the injunction was to preserve
jurisdiction, especially considering the fact that this
"jurisdiction-preserving" injunction is still in place after
approximately three weeks worth of "marathon hearings" on the merits,
we find that our skepticism is irrelevant in light of the manner in which we
resolve the case. Furthermore, although we believe that we properly review the
non-adjudication order as an appealable interlocutory
injunction pursuant to 28 U.S.C. § 1292(a)(1), we note
that even if we were incorrect in this conclusion, we would, in the
alternative, exercise our discretion to treat the Acevedo Defendants' notice of
appeal as a petition for mandamus under the All Writs Act, 28 U.S.C. § 1651(a),
thus preserving our jurisdiction in any event. See, e.g., United
States v. Horn, 29 F.3d 754, 769 (1st Cir. 1994) ("We are
fortified in our resolve to hear and determine this appeal by the knowledge
that, even if no appeal lies as of right, we possess--and can appropriately
exercise--the power of discretionary review via mandamus, to address the
important question raised in this case.").
27. The standard for
determining the existence of original federal jurisdiction under 28 U.S.C. §
1343 is, of course, much more liberal than the standard for determining the
existence of removal jurisdiction under 28 U.S.C. § 1441, at least outside of
the complete preemption context. See BIW Deceived, 824 F.2d at 832.
28. We do not foreclose the
possibility of a case in which federal intervention would be appropriate
without a showing of disenfranchisement. The most obvious example of this would
be a case involving vote dilution. See Bush v. Gore,
531
Here,
however, the Rosselló Plaintiffs' claim that the
Commission's "change in the rules" after the election somehow
"diluted" their vote for their political party of choice is without
merit because there was no clear rule prior to the election that the three-mark
split ballots were invalid.
The
Rosselló Plaintiffs' claim that the three-mark split
ballots were adjudicated inconsistently on election night (and immediately
thereafter), on the other hand, presents a much stronger claim for federal
intervention without a showing of disenfranchisement. That claim, however is
rendered moot by the fact that all ballots will be adjudicated in the same
uniform manner during the recount. See Bush v. Gore, 531
U.S. at 106 (per curiam) (addressing situation
where "the standards for accepting or rejecting contested ballots might
vary not only from county to county but indeed within a single county from one
recount team to another.").
Presione Aquí para regresar al Menú anterior y seleccionar otro caso.
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