Opinión y Orden del Juez Domínguez en el caso de Suárez v. Comisión Estatal sobre la Solicitud de Traslado.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MANUEL R. SUAREZ, et al., Plaintiffs,
v. CIVIL NO. 04-2288(DRD)
COMISION ESTATAL DE ELECCIONES, et al., Defendants
Véase Opinión Per Curiam del Tribunal Supremo y otras.
OPINION AND ORDER
Pending before the Court are several Motions to Remand and a Motion to Join filed by appearing Plaintiffs and several of the appearing Co-defendants.[1] The movants request the Court to remand the instant case on several grounds, to wit, that the Petition for Removal was filed on a day the Court was not opened for business except for the proceedings being held in the undersigned’s courtroom; that the filing was not made in compliance with Local Rules’ requirement that documents must be filed in the English language; that the Co-defendants’ right to remove was waived for reason of requesting an extension of time to answer an Order issued by the Supreme Court of Puerto Rico prior to the filing of the Notice of Removal and by arguing a request for dismissal at the Puerto Rico Court of First Instance, San Juan part ; that there is no federal question to be addressed because all the alleged claims are based on local law or, in the alternative, if the Court concludes that there is a federal question in the claims, the Court should remand the local claims and; finally, that not all Co-defendants consented to the Removal. The Court addresses in seriatim the claims asserted as grounds for Remand.
I . The Court was not open for business except for the proceedings being conducted at the undersigned’s Courtroom.
On Saturday, November 20, 2004, the Court was in an injunctive hearing session entertaining the matter of Pedro Rossello, et al., v. Sila Calderon, et al., (Civil No. 04-2251(DRD)), from 9:45 a.m. until 10:00 p.m. (See, Opinion and Order, Docket No. 136). As stated on the record of the hearing for said date, at the time the Notice of Removal was filed, all courtroom personnel were present that day as support personnel from the Clerk’s Office, in addition to maintenance personnel on site in case their services were required. Further, support personnel from the Computerized Systems Office and other Clerk’s Office personnel were present. A finance officer was not present on said date, the doors of the Courthouse were open granting access to any person to file any document in the Court’s Drop Box and that is precisely what occurred. Counsel for the New Progressive Party and for its Electoral Commissioner testified that on said date he came in and stamped, in the Court’s Drop Box, the instant Notice of Removal; as he was filing he was informed that personnel from the Clerk’s Office were in said office. Further, counsel testified that the Acting Chief of Operations received him at the Clerk’s Office and received the Notice of Removal and a check in the amount required the filing fee. Some documents were filed with the Clerk’s Office and stamped by her, others were stamped a few minutes earlier at the Drop Box.
Petitioners for Remand contend that Rule 77 of Federal Rules Civil Procedure provides that the District Court shall be deemed “always open for the purpose of filing any pleading or other proper paper.” However, Rule 77(c) provides that the Clerk’s Office with the clerk or a deputy in attendance shall be open “during business hours on all days except Saturdays, Sundays, and legal holidays, but a District Court may provide by a local rule or order that its clerk’s office shall be open for specified hours on Saturdays or particular legal holidays ...” In the instant case, Petitioners for Remand sustain that there is no Order as required by Fed. R. Civ. P. 77(c), allowing the Clerk’s Office to be open on Saturday, November 20, 2004. Therefore, petitioners sustain, that the Clerk’s Office personnel, present in the Courthouse that Saturday, were there only to lend the necessary support to the ongoing process at the courtroom and that by itself, does not mean that the Clerk’s Office was opened for business. Accordingly, petitioners aver, the filing done outside the regular business hours should not be considered. In other words, the parties seeking remand argue, the instant Petition for Removal cannot be deemed filed on November 20, 2004 but rather as the next business day which was November 22, 2004, the date in which, they assert, the filing fee was paid, and the ECF notice of filing was issued.
The fact is, however, that this Court was open for business on a Saturday, and personnel of the Court received the Notice of Removal on said Saturday November 20, 2004 around 11:00 a.m. (See, Order and Sworn Statement, and copy of the check purchased from Western Union on November, 17, 2004 at 11:15 a.m. (Docket No. 48)). Further FRCP 77(a) clearly states that “the district court shall be deemed always open for the purpose of filing any pleading or other proper paper . . .” Further, even if there was no Drop Box Service and/or if the Clerk’s Office was closed, a federal judge is authorized under the Rules to receive the documents; more so if one considers that the removed case was assigned to the undersigned as a “related case”.
The filing of papers with the court as required by these rules shall be made by filing them with clerk of court, except that the judge may permit the
papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Fed.R.Civ.P. Rule 5(e).
The instant case was filed on November 16, 2004, at 1:46 p.m. at the trial level and, subsequently, a writ of Certification was filed at the Supreme Court on November 18th at 1:56 p.m. The Supreme Court accepted the case for Certification on November 19, 2004 (no hour). In the meantime, of November 20, 2004 on or around 11:08 a.m defendant Commissioner Rivera Schatz filed a Notice of Removal at this federal court and, subsequently, at 11: 48 a.m. notified the Supreme Court of the same. Notwithstanding, the decision of the Supreme Court was issued on Saturday, November 20, 2004 (no hour) after the Plaintiffs, at 4:16 a.m., filed a motion requesting the Court to issue its ruling arguing lack of federal subject matter jurisdiction. (See Table at Docket No. 12.)
Hence, Commissioner Rivera Schatz had barely four (4) days to remove the case. However, although the Clerk’s Office was closed the afternoon of November 18th due of the Thanksgiving lunch for all employees and the 19th of November because of local holiday, this particular Judge held hearings in the parallel split ballot case on said dates until the late evening hours (after 9:00 p.m.) and also held hearings on Saturday, November 20th until 10:00 p.m. Even, should the Drop Box not have been available and the Clerk’s Office closed, this Court is authorized by law to receive the document. Accordingly, the Court finds petitioners’ for remand arguments unpersuasive.
II. Filing was not made in compliance with Local Rules’s requirement that documents filed must be in the English language
Petitioners for Remand sustain that the documents filed did not comply with the requirements set forth by Local Rule 10(b) as to filing all documents in the English language or having certified translations of all documents in a language other than English. Therefore, petitioners sustain that,
since the party seeking the removal failed to meet the requirements set forth by Local Rule 10(b), the Court cannot entertain the Petition for Removal since the core documents (complaint, orders, opinions) cannot be considered by the Court. Hence, the Petition for Removal is fatally flawed.
Moreover, the Petitioners aver that there is a mandate from the First Circuit Court of Appeals that this Court shall follow the requirement imposed by Rule 10(b). Petitioners affirm that in U.S. v. Rivera-Rosario, 300 F.3d 1 (1st Cir. 2002), the Circuit Court imposed the duty on the Clerk of the Court to “refuse to receive and file the record” of any case removed to the district court that does not contain ‘an English translation of all papers.” In said case, the admonition was grounded in then existing Local Rule 108.1 which required in its relevant part that:
Whenever a case is removed to this Court, there shall be filed with the record, an English translation of all papers. Such translation shall be certified by the Court interpreter or accepted in writing by the parties. Unless such translation accompanies the record, the Clerk shall refuse to receive and file the records.
The Court notes that since the 2nd day of April 2004, the District Court for the District of Puerto Rico enacted new Local Rules. In specific, Local Rule 10(b) amended prior Local Rule 108, and specifically deleted from its language the imposition on the Clerk of the Court to refuse to receive documents not filed in the English language that were not accompanied by a certified translation of a certified interpreter. Moreover, Local Rule 10 encourages the reader to examine also Local Rule 43 which although requiring that all proceedings be conducted in the English language and that testimony and exhibits shall be transcribed into English, unless otherwise ordered by the Court. (Emphasis ours)
The Court does not obviate and respects the requirement that all proceedings in the District Court for Puerto Rico must be conducted in the English language. Estades Negroni v. Assocs. Corp.
of N. Am., 359 F.3d 1, 2 (1st Cir. 2004). However, it is known that a violation of the English language requirement constitutes reversible error whenever the “appellant demonstrates that the untranslated portion of the evidence has the potential to affect the disposition of an issue raised on appeal.” Gonzalez-de-Blasini v. Family Department, 377 F.3d 81, 88(1st Cir. 2004)(emphasis ours).
In the instant case, all documents accompanying the Notice of Removal filed by the New Progressive Party and its Electoral Commissioner were filed in the Spanish language. On that same date, a motion requesting leave to waive the requirements imposed by Local Rule 10(b) was filed by the movants requesting leave to submit the certified translations “as soon as possible”(Docket No. 2). Said request was denied by the undersigned on November 30, 2004 (Docket No. 25) and a term until December 6, 2004, was provided to defendants to cure and provide certified translations of such supporting documents. The movants did comply with this Order (Docket Nos. 42 and 43).[2][2] Hence, this Court is not reaching a decision relying on documents filed in the Spanish language. Further, when and if this case reaches an appeal, the Court of Appeals shall receive all documents in English.
In light that the Court did order the New Progressive Party and its Electoral Commissioner to file certified translations of all documents in compliance with Local Rule 10(b), and that the Local Rules as enacted grants the Court the authority to issue such an Order, and further, that the explicit language of the Local Rule 108 was amended by the newly enacted Local Rules, the undersigned deems the argument raised by the Petitioners as completely devoid of merit.
III. That the Co-defendants’ right to remove was waived for reason of requesting an extension of time to answer an Order issued by the Supreme Court of Puerto Rico prior to the filing of the Notice of Removal and by prior thereto arguing a request for dismissal at the First Instance Court of Puerto Rico, part of San Juan.
Petitioners for Remand sustain that: a) the action of seeking a continuance at the State Supreme Court without notifying the intention to remove constitutes a waiver of the right to Removal; b) the action of seeking a prior dismissal in the state court, which was granted, is a waiver to their right to request Removal; and c) once the Supreme Court’s Opinion and Order was annulled, the First Instance Court dismissal stands unreviewed and there is nothing to be reviewed on the merits and therefore, the District Court lacks an Article III “case and controversy”. The Court disagrees and explains.
This Court unequivocally accepts that a defendant may waive its right to remove an action to federal court. However, the conduct relied upon to establish such a waiver must amount to an estoppel. Collins Mfg. Co. v. Wickwire Spencer Steel Co., 11 F.2d 196 (D.C. Mass. 1926); Houlton Savings Bank v. American Laundry Machinery, 7 F.Supp. 858, 861 (D.C. Maine 1934). Here, in order for the act incurred by the Commissioner Rivera Schatz to operate as a waiver “must be irreconcilably repugnant to the assertion of his legal right”. Houlton Savings Bank, 7 F.Supp. at 861. Further, it is well known that “[T]o make out a case of abandonment or waiver of a legal right, there must be a clear, unequivocal, and decisive act of the party showing such a purpose, or acts amounting to an estoppel on his part.” Id. (citations omitted).
Likewise, taking part in certain preliminary actions like the filing of a complaint, or such as pleading or opposing a preliminary injunction, as plaintiffs did, utterly fails to constitute a waiver of the right to remove. In re Application of Harris, 560 F.Supp 940, 942 (S.D.N.Y 1983). Specifically, arguing a motion for temporary injunction at the state court fails to constitute a waiver of the right for removal. Dri Mark Products, Inc. v. Meyercord Co., 194 F.Supp. 536 (SD NY 1961). Moreover, a motion requesting an extension of time to answer is an affirmative action showing the intent to waive the right to removal. Collins Mfg. Co., supra; Dri Mark Products, Inc., supra.
Further, the combination of both, the motion and request for extension fails to constitute actions “irreconcilably repugnant to the assertion of his legal right [to remove]” Houlton Savings Bank, 7 F.Supp. at 861. Furthermore, as alleged by the defendant seeking removal at the Hearing on Remand held by the Court on November 8, 2004, the Court notes their purchase of a Western Union’s money order check for purposes of filing the Notice of Removal on November 17, 2004, as indicative of their intent not to waive their right to remove to federal court.[3] [3] Finally, the right of removal shall not be foreclosed to a defendant because he takes adequate steps to protect his rights at the state court proceedings. Goglia, William T., Opposing Injunction or Restraining Order in State Court Action as Waiver of Right to Remove Action to Federal District Court Under 28 U.S.C.A. §1441, 58 A.L.R. Fed. 732.
As to the fact that there is nothing more to decide see discussion infra, in §VI, as to the imbued potential necessary federal questions presented by the adjudication of the split ballot controversy object of the state cause of action. See Franchise Tax Bd. v. Construction Laborers
Vacation Trust, 463 U.S. 1, 22, 103 S.Ct. 2841, 2853 (1983); Rivet v. Regions Bank of Lousiana, 522 U.S. 470, 471, 118 S.Ct. 921, 923 (1998)(“a plaintiff may not defeat removal by omitting to plead necessary federal questions”.) Further, ¶¶ 12 & 26 of the Complaint at the First Instance Court claims violations of due process and equal protection without specifying whether it is under the state or the Federal Constitution.
IV. Removal from the Supreme Court is allegedly barred
The petitioners for Remand argued at the Remand Hearing that Removal could not be made from the Supreme Court of Puerto Rico, as appeal body. The short answer is that in Volkswagen de P.R., Inc. v. Puerto Rico Labor Board, 454 F.2d 38, 42 (1st Cir 1972), the Court stated that “a petition from an administrative quasi judicial agency filed in the Supreme Court at that stage...would presumably be one in a state court and removable at [petitioner’s behest]”. Most critical, however, is that the instant case at the Supreme Court is a Writ of Certification pursuant to Law No. 201 of 22 of August 2003, Art. 3.002(e), 4 P.R. Laws Ann. §245(e). Pursuant to the cited article the Supreme Court may, at the request of a party or motu proprio, bring before said Court any controversy, pending before any Puerto Rico Court of First Instance or the Circuit Court of Appeals, involving matters of “high public interest” or involving “substantial constitutional questions.” The Supreme Court purposefully took charge of the case, bypassing the jurisdiction of the Circuit Court of Appeals, without waiting for that the judgment of the Court of First Instance to be officially issued and duly notified to the parties and/or reconsidered, or for the normal review by the Circuit Court.
The opinion of the Supreme Court in fact recognizes that the Court of First Instance had advanced orally its opinion but the matter was still pending and no sentence had been issued at the trial level. Opinion and Order of the Supreme Court in Manuel R.Suarez, et al., v. Comision Estatal de Elecciones, et al., dated November 20, 2004, p. 5. (Translated at Docket No. 120, at Civil No. 04-2251(DRD)). The normal appeal process requires an appeal from the Court of First Instance to the Circuit Court of Appeals. Art. 4.006(a), 4 P.R.Laws Ann. §244(a). Further, no state law can be interpreted to “eviscerate the language of §1446 permitting a defendant 30 days to remove” the case to federal court. Berberian v. Gibney, 514 F.2d 790, 792 (1st Cir. 1975) . Succinctly, this means that the astonishing speed in the handling and adjudication of the instant case (four days from trial level to Supreme Court decision) cannot defeat defendant’s federal right to remove. Hence, the issue was not an appeal at the Supreme Court, and the Supreme Court’s unexplainable haste cannot defeat the right to removal.
V. Whether or not the Court should abstain under the Pullman Doctrine of Abstention
Petitioners for Remand argued, at the Hearing, that the Court should abstain from exercising its jurisdiction under the Pullman Doctrine of Abstention. Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643 (1941). However, Pullman abstention is discretional in nature. Harman v. Forssenius, 380 U.S 528, 534, 85 S.Ct. 1177, 1181 (1965).
The strongest reason not to abstain is simply because the Puerto Rico Supreme Court twice has unambiguously ruled that when a case involves “mixed questions of federal and state law that must be ruled by the federal court because the validity of the statute under the federal constitution necessarily disposes of the question...[O]ur opinion [the local Supreme Court’s] would be purely advisory.” Cuesnongle v. Ramos, 19 P.R. Official Trans. 493 (1987)(citing Pan American Comp. Corp. V. Data General Corp., 112 D.P.R. 789 (1982)). In Pan American Com. Corp., the Supreme Court of Puerto Rico rejected a request for certification because the federal court would remain with the jurisdiction as to the federal question under the U.S. Constitution. The certification in Cuesnongle v. Ramos, was made directly from the First Circuit Court to the Supreme Court of Puerto Rico. That certification was also rejected for the same reasons expressed in Pan American Com. Corp, supra.
The Cuesnongle certification involved whether the Puerto Rico Consumers law was applicable to a university. The certification permitted the local court to decide the matter purely on local state grounds, so the local Supreme Court could have potentially avoided interpreting the local Constitution. The complete reasoning of the Supreme Court of Puerto Rico expressed in Cuesnongle v. Ramos, Id., (plurality opinion) stated:
Thus the situation is similar to the one in Pan Ame., supra. We are dealing with a controversy on the constitutionality of a state law under the Constitution of Puerto Rico, which is similar to a provision of the federal Constitution. “[T]he question is a mixed question of federal and state law that must be ruled upon federal court because the validity of the statute under the federal [C]onstitution necessarily disposes
of the question under state law. Pan Ame., supra, at 794. Our decision would be purely advisory. Although we recognize that, on past occasions, the Court has shown great deference towards our decisions, in the context of this case, the question could be adjudicated under federal tests quite different from ours.
Since Pan Ame., supra, we established that certification is in order only when the validity of a statute is challenged under a state constitutional provision with no equivalent in the Federal Constitution. Ibid. Reetz v. Bozanich, 397 U.S. 82, (1970); White v. Edgar, 320 A.2d 668, 677 (1974); Abrams v. West Va. Racing Commission, 263 S.E.2d 103 (1980).
For the foregoing reasons, we cannot answer the certification before our consideration. (Emphasis ours).[4][4]
Here, the challenge brought is under Equal Protection and Due Process which are protections
secured under both the Commonwealth and U.S. Constitutions. Therefore, the “most direct, speedy and inexpensive way...to obtain an authoritative interpretation” of local law is not a possibility by repeated mandates of the Supreme Court of Puerto Rico rejecting certifications when the District Court retains jurisdiction as to constitutional dispositions parallel to those of the Commonwealth.
When the case returned to the Circuit Court, Cuesnongle v. Ramos, 835 F.2d 1486, 1496 (1st Cir. 1987), then Chief Judge Coffin, writing for the Court, expressed concern that the Certification Rule of the local Supreme Court “eviscerated [the certification process in Puerto Rico] in those cases where a federal constitutional question might remain even after the resolution of state law issues. . . logic would also preclude Pullman abstention in Puerto Rico whenever a constitutional issue is reserved by plaintiff for federal consideration.”
It may be that there are federal constitutional considerations that are relevant to some degree to many, if not all, questions of state statutory interpretation. Nevertheless, if the Supreme Court of Puerto Rico does in fact refuse to answer certified questions on this basis, then the certification process in Puerto Rico will be eviscerated in those cases where a federal constitutional question might remain even after the resolution of the state law issues. This logic would also preclude Pullman abstention in Puerto Rico whenever a federal constitutional issue is reserved by the plaintiff for federal consideration. (Emphasis in the original).Cuesnongle__________________________________________________________ v. Ramos, 835 F.2d at 1496.
VI. That there is no federal question to be addressed because all the alleged claims are based on local law or in the alternative if the Court concludes that there is a federal question in the claims, the Court should remand the local claims.
Notwithstanding that petitioners of Remand claim that there is no federal cause of action, the Court examining the evidence in the light most favorable to the defendants is of the opinion that an overvote issue may exists in violation of Due Process and Equal Protection principles under the case of Bonas v. Town of North Smithfiled, 265 F.3d 69 (1st Cir. 2001). Commissioner Rivera
Schatz claims that an election is a constitutional exercise of a voter’s right to select public officials and is not an exercise to elect a party. 16 P.R. Laws Ann. §3205. Petitioner Rivera Schatz then challenges the validity of a ballot cast under a insignia of a party as a “straight ballot” which is defined as a “[voter casting] his/her vote for the entire slate of a single political party,” 16 P.R. Laws Ann. §3003(31), (emphasis ours), and at the same time in the same ballot containing exclusively the candidates for Governor and Resident Commissioner ballots are cast under another party. Petitoner for the Removal claims that the definition of “split ballot” contained under the law at 16 P.R. Laws Ann. §3003(33), allowing the voter to vote for “any combination of candidates” is to be read in conjunction with the definition of a “straight ballot” resulting in that the total repudiation of the only two candidates under the party insignia nullifies the vote as a double contradictory vote. Rivera Schatz’s argument is further substantiated by the instructions to the voter contained in each split ballot (Ex. 4 parallel case Pedro Rosselló v. Sila M. Calderón Civil Case No. 04- 2251(DRD)) in the “how to vote split” instruction it is clearly stated that “to vote split, a valid mark (X) is made under the emblem of your preferred party and a mark is made next to another candidate outside the column of your party, or you write the name of another person of your choice under the corresponding position in the last column for direct nomination” (Emphasis ours). Rivera Schatz urges that the definition of a mark refers to a singular “X” under either the Governor or the Resident Commissioner but not both. Rivera Schatz further sustains that the requirement at the last sentence that “you can vote for only one candidate for Governor and one candidate for Resident Commissioner” refers to the rule of law that two votes for the same candidacy annuls the vote. 16 P.R. Laws Ann. §3262.[5] This is contrasted with the legislative ballot with similar instructions but allowing not a valid mark as in the gubernatorial ballot, but allowing “a mark next to one or more candidates outside the candidates outside the column of your party” to accomplish a split ballot vote.
Further, Rivera Schatz avers that the Rule 81 of the Regulation for the General Elections and General Canvassing of 1984 (Ex. 2 parallel case Pedro Rosselló v. Sila M. Calderón Civil Case No. 04- 2251(DRD)) allows for the candidacy of Governor and in a separate paragraph for Resident Commissioner but the definition is not in the conjunctive. Moreover, in the Procedure Manual for the General 2004 Election, (Ex. 1 parallel case Pedro Rosselló v. Sila M. Calderón Civil Case No. 04- 2251(DRD)), published by the Electoral Commissioner providing guidance for the officers at the tables and/or to be used as guidance for instructions to the table representatives of the parties, the example provided is one of one “X” for the party and one other “X” in the candidate for Governor or for Resident Commissioner as per the instructions in the ballot (Ex. 4 parallel case Pedro Rosselló v. Sila M. Calderón Civil Case No. 04- 2251(DRD)). Similar manuals for the 1996 and 2000 elections also have only the previously described example. In none of the Manuals of Procedure for previous elections wherein the split ballot form of voting for gubernatorial and resident commissioner vote is illustrated as to the elections of 1996, 2000, and 2004, there is an example describing voting in split ballot fashion for a party and for both the Governor and the Resident Commissioner which is claimed by defendants as the most obvious example (Ex. 4 parallel case Pedro Rosselló v. Sila M. Calderón Civil Case No. 04- 2251(DRD)).
Moreover, the Commission has produced a video showing all T.V. advertisements made in the 2004 election, none contemplate as a valid illustrated split vote, the split ballot object of this case, (Ex. T parallel case Pedro Rosselló v. Sila M. Calderón Civil Case No. 04- 2251(DRD)). The advertisement refers to one “X” under the insignia and one “X” for another candidate.
Finally, when the matter of the described split votes was originally raised by the NPP representatives at the Commission’s Offices at the General Canvassing on November 10, 2004, and November 11, 2004,[6] the same ballots allegedly were adjudicated differently by floor supervisors of the PIP and PPD representatives as either straight PIP votes or PIP mixed votes which circumstantially showed that this type of vote containing three “Xs” was something new even for the floor supervisors of party representative performing the general canvassing, after the elections were held, at the Electoral Commission.[7]
It is Rivera Schatz’ allegation that voters entering the booth with the Gubernatorial/Resident Commissioner ballot may only make an “X” under the emblem of your preferred party and a mark next to another candidate “but not” next to one or more candidates as allowed in the legislative ballot. The instructions are clear and may not be changed by the Commission or the Supreme Court in violation of due process and equal protection which clearly constitutes changing the rules of the election after the elections are held. Allowing this method of voting to some is detrimental to those who followed the clear instructions of only making one “X” under a candidate and one “X” under the insignia as an authorized form of voting contained in the ballot instructions as to the proper method of split ballot voting. The court is not deciding the constitutional matter at this time and is aware that two witnesses employees/agents of the NPP testified, one as having received instruction that three “Xs” were valid and, another of preparing a pamphlet to be used as a guide distributed to around sixty persons, all instructors, wherein three “Xs” were deemed valid votes.
There is also a second cause of action which some have referred as the “power vote” in open violation to the “one person one vote” constitutional mandate. Parties in Puerto Rico in order to maintain their electoral franchise and secure annually state funds may qualify as a “Principal Party” by a vote if “at least seven percent (7%) of the total ballots cast for all the parties insignias “(“X” under an insignia as the definition of a straight ballot). The party franchise is also maintained if the party receives “three percent (3%) of the total number of straight ballots in the ballot for Governor and Resident Commissioner” and finally the party also maintains its franchise if the candidate for Governor obtains in the election “no less than five percent (5%) of the total number of votes cast for all to said office”. 16 P.R. Laws Ann. §3101(a).
By voting split ballot as depicted in the ballot for Governor/Resident Commissioner, Exhibit 4, (parallel case), the party receives credit for the seven percent (7%) formula in the gubernatorial and Resident Commissioner ballot by voting under the insignia (also presumed under the law as a “straight ballot” (meaning a vote for the entire slate under the insignia) 16 P.R. Laws. Ann §3003(31)) but without voting for a single candidate under the insignia. Further, the Popular Democratic Party receives credit under the 3% formula and the 5% formula. This may constitute a “power vote” which would be privileged and may have more weight than all straight ballots (straight ballots constitutes the vast majority of all votes cast in the election of 2004; 95.35% of the total votes cast in P.R. the night of the elections, the number may increase or decrease slightly after the current recount). The same logic may apply to ballots that have one vote under the insignia and one vote under the governor but said votes are not under challenge because at least the instruction allows them to be valid because one “X” was cast for the insignia and one “X” for a candidate. The “one person-one vote” principle in the instant case is similar to the constitutionally proscribed gerrymandering principles.[8]
VII. Remand and/or Concurrent Jurisdiction is warranted because one of the Defendants, Commissioner Juan Dalmau has not been served.
Petitioners request remand and/or a declaration that both the Supreme Court and the federal court have concurrent jurisdiction because one of the Defendants, Commissioner Juan Dalmau has not been served.[9] Plaintiffs claim that pursuant to Berberian v. Gibney, 514 F.2d 790 ,792 (1st Cir., 1975), all the Defendants must be notified to complete the Removal process and that in the interim there is concurrent jurisdiction. However, in Berberian, Id., it was the state court who was not notified. Further, in the case of Transitional Learning Community at Galveston, Inc. v. Metropolitan Life Insurance Co., 895 F.Supp. 153, 154 (S.D. Texas 1995) also cited as authority by the petitioners it was also the state court that was not notified. The case of Medrano v. State of Texas, 580 F.2d 803 (5th Cir. 1978)(a criminal removal) also cited by petitioners, and Stephens v. Portal Boat Co., 781 F.2d 481 (5th Cir. 1986), again, it was the State court who was not notified and, hence, the remand had not been completed. Hence, all the cases cited by the petitioners are inapposite. However, the Court recognizes a distinction in the Berberian, wherein the court stated that “the jurisdiction of the federal court attaches as soon as the Petition for Removal is filed with it, and both state and federal courts have jurisdiction until the process of Removal is completed”. Berberian v. Gibney, 514 F.2d at 792-793.
The Court acknowledges that the “most sound rule is that Removal is not effective until all steps [under 28 U.S.C. §1446(d)] have been taken as required”. 14C Wright, Miller & Cooper, Federal Practice and Procedure: 3d, §3737, p. 382. However, the most “sounder rule” expressed by Wright, Miller & Cooper, includes only the notice to the State Court. Anthony v. Runyon, 76 F.3d 210, 213-214 (8th Cir. 1996)(“most courts hold that Remand is effected by filing a copy of the notice of remand in state courts). Wright, Miller & Cooper. (Citations omitted). Some courts including the Eastern District of Arkansas, have held removal is effected simply by filing the notice of removal in the federal courts. (Citations omitted).... A few courts have held that the state and federal courts have concurrent jurisdiction until the matter of removal is filed at the state court. (Citations omitted). Runyon, 76 F.3d at 213-214. Finally, the Court recognizes that the First Circuit in Berberian v. Gibney, 514 F.2d at 792-793, is a case where the state court was not notified stated in dictum that “both state and federal court has jurisdiction until the process was completed”. Wright, Miller & Cooper, Id., at 383(citing among cases Berberian, Id..) The Court construes as well as Wright, Miller & Cooper, that the First Circuit is with an “intermediate” position wherein “both the state and the federal courts have jurisdiction during the period of the notice of removal in federal court and the giving of notice to the state court”. Wright, Miller & Cooper, at 378.
The Court has received three (3) motions filed by the parties late in the evening. At 8:31 p.m. of December 9, 2004, Commissioner Cruz filed two motions. A motion requesting Order as to Preclusive Effect to Final Ruling of the CEE (Docket No. 53 at 8:27 p.m.) and a motion requesting order to Apply the Doctrine of Judicial Estoppel (Docket No. 54, 8: 31 p.m.). Finally, at 2:21 a.m. of December 10, 2004, the Court received a motion by Commissioner Rivera Schatz (Docket No. 56) stating that the Independence Party Commissioner Dalmau had constructive knowledge of the removal since at least November 21, 2004, when Dalmau addressed the issue at a press conference. Further, Rivera Schatz sustains that a subpoena was served upon Commissioner Dalmau to appear in this Court at the remand hearing held on December 8, 2004 to testify, as to this constructive knowledge of the removal as of at least November 21, 2004.
Moreover, Commissioner Rivera Schatz states that Commissioner Dalmau was actually served with removal notice on December 9, 2004. The Court did not receive a legible copy of the service to Commissioner Dalmau nor a copy of the subpoena. It is alleged that Commissioner Dalmau has stated that he would not appear at the Federal Court and would have to be arrested. The Court did received in a prior motion of Commissioner Rivera Schatz a newspaper clipping wherein it is attributed to Commissioner Dalmau that he would not appear in federal court. The purpose of the copy of the subpoena, if it was actually served, is obviously to verify Commissioner Dalmau’s potential constructive knowledge. Constructive knowledge of a Removal is accepted as an alternative method of service specially if, later accompanied by actual service. Transitional Learning Community at Galveston, Inc., 895 F.Supp. at 154; Medrano, 580 F.2d at 804; U.S. ex rel. Echevarria v. Silberglitt, 441 F.2d 225, 227 (2nd Cir. 1971)(All cases only requiring constructive service not actual service thereafter.)
The Court must now tackle the issue of timeliness of the service to Commissioner Dalmau because the 30 day term, beginning from November 16, 2004, to remove the case has not expired. Undue delay causes a potential remand or concurrent jurisdiction. However, “[w]hat constitutes undue delay depends upon the circumstances of the Removal in the individual case. Specially relevant is the factor of whether at which point in the action, removal is sought and whether there are compelling reasons for Defendants’ delay”. Wright, Miller & Cooper, at 379.
This determination is fact intensively driven. There is caselaw indicating that a five day delay is too long. Coletti v. Ovaltine Food Products, 274 F.Supp. 719 (D.C.P.R. 1967). Other cases hold that a thirty six days delay is harmless. Calderon v. Pathmark Stores, Inc., 101 F.Supp. 246, 247-48 (S.D. N.Y. 2000)(See generally, Resolution Trust Corp. v. Nerberg, 3 F.3d 62, 69 (3rd Cir. 1993)(thirty four day delay found unacceptable).
The Court cannot, at this time, determine if in fact Commissioner Dalmau had constructive knowledge as claimed or whether he was, in fact, subpoenaed as claimed by Commissioner Rivera Schatz. It is however undisputable that Independence Party Commissioner Dalmau has not been participating at all in the parallel dispute as to the validity of the split ballot case held before the undersigned entitled, Pedro Rossello, et al., v. Sila Claderon , et al., Civil No. 04-2251(DRD)(Nonappearance also covered discussions as to manner in which the recount was to be performed).
Further, should Commissioner Dalmau had been participating at the hearing on the 20th of November 2004, indisputably he would had knowledge as to the removal because the Court interrupted the hearing when the Clerk’s Office delivered the file to the undersigned around noon of said date and the Court made available the file for examination by all counsel present. The Court particularly recalls counsel Ms. Emmanuelli representative of co-defendant Anibal Acevedo Vilá and counsel Rafael Escalera representative of Sila María Calderón examining the file. Other counsel may have examined the file. The Court, at that time did not realize that the removed case was ultimately to be the Removal from the Supreme Court of the instant case.
Constructive knowledge of Commissioner Dalmau is pertinent to the instant case as well as whether or not he was in fact subpoenaed at the request of Commissioner Rivera Schatz to appear at the hearing to be held at the Court on December 8, 2004. Commissioner Dalmau is granted until Wednesday, December 15, 2004 at 5:00 p.m. to express his position in writing relating to potential constructive knowledge and as to whether he was in fact attempted to be subpoenaed or subpoenaed to the remand hearing held by the court on December 8, 2004. Should the court not hear from Commissioner Dalmau the court shall construe he is not interested and shall proceed to decide the remand matter.
The disposition of this matter is thus ironic, the remand and/or concurrent jurisdiction with the Supreme Court rest in the due process granted by the court to the Commissioner of the Puerto Rico Independence Party, Juan Dalmau who up to this moment has out of his own volition decided not to participate in the procedures of this court. The matter becomes even more ironic because the Supreme Court in the inexplicable rush to judgment leaves out one of the major parties and its gubernatorial candidate which were defendants and were never served and were obviously affected by the rapid decision of the Supreme Court.[10] Commissioner Dalmau shall be Subpoenaed by the United States Marshal’s Office FORTHWITH with a copy of this Opinion and Order.
The Court through this Opinion and Order has therefore disposed of all pending motions except those filed late in the evening hours December 9 and the early morning hours, 2:31 a.m of December 10, 2004.[11]
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 10th day of December 2004.
S/DANIEL R. DOMINGUEZ
DANIEL R. DOMINGUEZ
U.S. DISTRICT JUDGE
[1] The several Motions to Remand filed by the different appearing parties are docketed at: 1) Docket No. 4, Emergency Motion to Remand, by Gerardo Cruz, Co-defendant; 2) Docket Nos. 5 & 6, Motion to Remand and Memorandum in Support thereof by Plaintiffs; 3) Docket No. 11, Motion for Joinder to Emergency Motion to Remand filed by the Comision Estatal de Elecciones and its President Aurelio Gracia; Docket No. 15, Supplemental Motion to Remand, by Plaintiffs; Docket No. 22, Supplemental Motion to Remand, by Plaintiffs; Docket No. 46, Motion Adopting by Reference Certain Arguments Contained in Special Appearance of Intervenor Marta Font Moving for Reconsideration and/or Remand, by Plaintiffs. Further, recently on this same date several motions were filed, to wit, Defendants Supplemental Memorandum in Opposition to Plaintifs’ Motion to Remand (Docket No. 49); Supplemental Motion to Remand for Failure to Serve Notice of Removal on All Parties Pursuant to 28 U.S.C. §1446(d), (Docket No. 50); Motion Reasserting Remand Request (Docket No. 52); Motion to Request an Order for the Application of Preclusive Efect to Final Ruling of the CEE, (Docket No. 53); Motion to Request an Order for the Application of Judicial Estoppel, (Docket No. 54); and Thomas Rivera Schatz and the New Progressive Party’s Supplemental Memorandum in Opposition to Supplemental Motions to Remand (Docket No. 56).
[2] The Court notes one of the reasons of the Court in amending its former rule of not accepting removal documents except if translated “and the clerk shall refuse to receive and file the records” is that FRCP 5(e) mandates that “the Clerk [of the Court] shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these or any local rules or practices”. (Emphasis ours.) Although the undersigned recognizes that the first part of the sentence refers to electronic filing the last disposition seems to cover all filings.
[3] The purchasing of a Western Union Money Order by a firm or its agent that would represent the defendants in federal court is not inconsistent with a motion to request an extension to file an extension for an opposition to a remedy at the Supreme Court since when a case is removed, the case is removed “as is” at the state Court’s level and the Removal mover did not wish to be in default of an order at the time of removal.
[4] In Pan American, Id., the court clearly stated that certification will only be accepted when the statute constitutional disposition “has no federal constitutional equivalent”. Pan American Comp. Corp. v. Data General Corp., 112 D.P.R. at 794. (Spanish version.) (Translation ours).
[5] 16 P.R. Laws Ann. §3262 states that: “[I]f there are more candidates marked on a ballot for the same position than those authorized to the voter, the vote for that position shall be annulled, but the votes in favor of the candidates that were correctly selected for the other positions on the ballot shall be counted”.
[6] The matter was not raised by the NPP representatives during the first two days of the General Canvassing.
[7] See testimony of Doris P. Burgos, Nov. 20, 2004, p. 117-123; testimony of Tony González Nieves, November 20, 2004, p. 163-182; and testimony of Jorge Ruíz García, November 20, 2004, p. 41-68.
[8] The Court has attempted to succinctly reproduce the Opinion of Past Chairman of the Electoral Commissioner, former retired Superior Court Judge, Juan R. Melecio, presently Campaign Director of the New Progressive Party in the 2004 elections but also originally suggested as Candidate for Chairman of the Electoral Commission by former Governor Hernandez Colon. The individual party commissioners selected Judge Melecio from a list proposed by the Governor, then Governor Hernandez Colon. Judge Melecio was subsequently also suggested by successor Governor, Dr. Pedro Rossello, and was also selected by the party commissioners as chairman of the Electoral Commission.
[9] The court harbors some doubts as to the standing of the Petitioners seeking remand to seek the rights of a third party since the purpose of the statute is that parties be duly notified enabling a remand challenge. The court proceeds assuming standing.
[10] In Gonzalez/Gonzalez v. U.S., 257 F.3d 31, 37 (1st Cir. 2001)(Selya. J.) , writing for the court expressed that court should be cautious in their actions because “haste makes waste”.
[11] The potential realignment issue of the parties shall be decided concurrently with the controversy as to the notice to Commissioner Dalmau.
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