Cintron-Garcia v. Barcelo

• Decision Date: 27 January 1982
• Docket Number: No. 81-1914,81-1914
• Citation: 671 F.2d 1
• Parties: Angel Manuel Cintron GARCIA, et al., Plaintiffs, Appellees, v. Carlos Romero BARCELO, etc., et al., Defendants, Appellees. Partido Popular Democratico, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 1

671 F.2d 1

Angel Manuel Cintron GARCIA, et al., Plaintiffs, Appellees, v. Carlos Romero BARCELO, etc., et al., Defendants, Appellees Partido Popular Democratico, et al., Defendants, Appellants.

No. 81-1914.

United States Court of Appeals First Circuit.

Argued Jan. 22, 1982.

Decided Jan. 27, 1982.

Lino J. Saldana, Santurce, P. R., with whom H. Febus Bernardini, Santurce, P. R., Marcos Ramirez and Marcos Ramirez Lavandero, Hato Rey, P. R., were on memorandum for defendants, appellants.

Eduardo L. Buso, San Juan, P. R., for defendant, appellee, Hector Reichard de Cardona, Secretary of Justice.

Marvin S. Cohen, with whom John M. Gibbons and Stroock, Stroock & Lavan, Washington, D. C., were on memorandum for plaintiffs, appellees.

Before COFFIN, Chief Judge, CAMPBELL and BREYER, Circuit Judges.

PER CURIAM.

On December 14, 1981, a federal district court in Puerto Rico preliminarily enjoined Commonwealth officials from filling a between-elections vacancy in the Commonwealth's House of Representatives according to the procedure set forth in the Constitution of the Commonwealth of Puerto Rico. The district judge believed that the constitutionally-mandated procedure, which allows the political party of the representatives whose seat fell vacant to choose his successor, probably violated the federal constitution. Defendants, the Popular Democratic Party ("PDP") and Hector L. Acevedo, its election commissioner, appeal. We believe that the issuance of a preliminary

injunction was erroneous, and we vacate the injunction.

I

The Constitution of Puerto Rico provides that its House of Representatives shall be comprised of 51 members, 40 of whom shall be selected by election from single-member districts and 11 of whom shall be selected at large. The at-large representatives are the 11 persons obtaining the most votes in a Commonwealth-wide election-one in which each voter can vote for only 1 representative. Article III, Section 2 and Section 3. See Garcia Passalacqua v. Tribunal Electoral, 105 D.P.R. 49 (1976). Should an at-large seat fall vacant in between the quadrennial elections, the President of the House is to appoint a successor "upon recommendation of the political party to which belonged the ... Representative causing the vacancy, with a candidate selected in the same manner as that in which his predecessor was selected." Constitution of Puerto Rico, Article III, Section 8.

In the general election held on November 4, 1980, Fernando J. Tonos Florenzan, a member of the PDP, was elected an at-large representative. Subsequently, he was disqualified because he was 23 years old-2 years younger than the minimum age the Constitution prescribes. Article III, Section 5. His seat was declared vacant. Tonos Florenzan v. Bernazard, 111 D.P.R. ---, 81 JTS 78 (1981).

On December 10, 1981, before his successor could be selected, 8 registered voters-plaintiffs here-filed suit alleging that the replacement procedure violates the First, Fifth and Fourteenth Amendments to the United States Constitution because it does not provide for a by-election open to all voters regardless of party. They sought a declaratory judgment, an order compelling a by-election and, subsequently, a temporary restraining order ("TRO").

The district court, while denying the TRO, quickly held a hearing and, on December 14, 1981, it issued a preliminary injunction effectively holding the seat vacant until it could decide the constitutional issue. Defendants appealed. Subsequently, on January 5, 1982, it denied a request to stay the injunction pending appeal. Defendants, noting that the House is divided evenly between the two major parties (25-25) and arguing that the House could not function properly, sought a stay from this court pending decision on their appeal. The issues were briefed effectively by all parties on an expedited schedule and oral argument was heard on January 22, 1982. As the parties agree, the question of whether we should stay the injunction pending appeal raises the same issues as the appeal itself. Hence, we here decide the appeal-the validity of the preliminary injunction.

II

In determining whether a plaintiff is entitled to a preliminary injunction, the court normally considers four criteria, namely, "(1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction." Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981) (quoting Women's Community Health Center, Inc. v. Cohen, 477 F.Supp. 542, 544 (D.Me.1979)). While the application of these criteria to the facts of a particular case ordinarily lies within the sound discretion of the trial courts, Grimard v. Carlston, 567 F.2d 1171, 1173 (1st Cir. 1978), we will reverse a trial court when it has applied an improper standard, or where it has misapplied the law to particular facts. Amalgamated Transit Union v. Commonwealth of Massachusetts, 666 F.2d 618 at 645 (1st Cir. 1981); Planned Parenthood League of Massachusetts v. Bellotti, supra. That is to say, we will reverse where the record plainly reveals that the underlying facts as reasonably found by the court, viewed in light of the proper standard, could not support the injunction's issuance. Such is the case here.

A

As the criteria listed above indicate, in deciding whether a preliminary injunction is appropriate, a district judge must engage in a balancing of harms. A preliminary injunction should in the usual case not issue unless the harm to plaintiff, in its absence, outweighs the harm to defendant that it may cause. The district court wrote that the requisite harm is to be found in the fact that allowing the PDP-selected replacement to take his seat pending resolution of this legal controversy would "moot" the case. It is wrong on this point. This controversy would remain real despite the seating of a replacement-at least until the election of a new representative at the next general election in 1984. Litigation could continue in this case just as it has in the related case of Partido Popular Democratico v. Gobernador, 111 D.P.R. ---, 81 JTS 41 (1981), where the Supreme Court of the United States has allowed the replacement representative for District 31 to be seated while it passes on the Constitutional validity of the process through which he was chosen. ¹ Should plaintiffs eventually prevail, in either case, presumably the seats at issue will be declared vacant just as was the seat of Tonos Florenzan.

The district court also found irreparable harm in the fact that, if plaintiffs later win, the voters would have been subject to laws enacted with the help of an unconstitutionally-selected legislator. This harm would seem at least equally balanced, however, by the interim harm that an injunction would have caused defendants if they later win, for in that case, those who voted for Tonos Florenzan in light of his party affiliation would wrongly have had no representative, see p. 7 and n.5 infra. The PDP would have been deprived of what otherwise appears to be a one-vote majority leaving the House deadlocked with the Governor a member of the major rival party. Indeed, viewed from the point of view of the political parties, the harm to one caused by an injunction "wrongly" (as the case turns out) withheld would seem exactly balanced by the harm to the other caused by an injunction "wrongly" issued. And, the harm to some voters through the possible enactment of laws with the participation of a "wrongly" appointed legislator would seem at the least counterbalanced by the harm to others caused by failure to pass laws (or the passage of other laws) brought about by "wrongly" keeping a seat vacant during the January-April legislative session.

We are aware of no special factors tilting the balance in favor of plaintiffs. To the contrary, the facts that for many years legislators have been chosen in accordance

with the challenged constitutional provisions, and that the Supreme Court of the United States has allowed another legislator facing a similar constitutional challenge to sit while that challenge is resolved, (see note 1 supra), suggests that there is no emergency requiring an immediate injunction. Plaintiffs' ingenious argument that the injunction simply preserves the status quo overlooks the fact that "status quo" in this context should encompass the normal functioning of the legislature and electoral processes in accordance with the provisions of the Constitution of Puerto Rico. Be that as it may, the district court finding that the harm to plaintiffs outweighs that likely imposed upon those whom the injunction affects adversely, is clearly erroneous.

B

We shall go next to plaintiffs' claim that they are so clearly right on the merits as to warrant injunctive relief even if the harms are no better than evenly balanced. Cf. Delaware River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 924 (3d Cir. 1974). We reject this claim, for we believe that it is defendants, not plaintiffs, who have shown a likelihood of success on the merits. ²

Plaintiffs' claim that Article III, Section 8 is unconstitutional rests upon two arguments. First, they argue that it violates the First, Fifth and Fourteenth Amendments to the Constitution for a state (or for the Commonwealth) to fill a legislative vacancy by appointment rather than through a by-election-at least where the next general election may be as much as three or four years away. In support, they cite reapportionment cases such as Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1377, 12 L.Ed.2d 506 (1964), stressing the constitutionally protected "right of all qualified citizens to vote in state as well as in...