Justices of Supreme Court of Puerto Rico, In re, s. 82-1538

• Citation: 695 F.2d 17
• Decision Date: 08 December 1982
• Docket Number: Nos. 82-1538,82-1573,s. 82-1538
• Parties: . In re COLEGIO DE ABOGADOS DE PUERTO RICO, and Fundacion Colegio De Abogados, Petitioners. United States Court of Appeals, First Circuit
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 17

695 F.2d 17

In re The JUSTICES OF the SUPREME COURT OF PUERTO RICO, Petitioners.

In re COLEGIO DE ABOGADOS DE PUERTO RICO, and Fundacion

Colegio De Abogados, Petitioners.

Nos. 82-1538, 82-1573.

United States Court of Appeals, First Circuit.

Argued Sept. 15, 1982.

Decided Dec. 8, 1982.

Carlos V. Garcia Gutierrez, with whom Harry Anduze Montano, Santurce, P.R., was on petition for writ of mandamus, for petitioners Colegio De Abogados De Puerto Rico and Fundacion Colegio De Abogados.

Jay A. Garcia Gregory, and Miriam Naveira De Rodon, with whom Salvador Antonetti, and Jose Julian Alvarez Gonzalez, San Juan, P.R., were on petition for writ of mandamus, for petitioners the Justices of the Supreme Court of Puerto Rico.

Robert E. Schneider, Jr., Santurce, P.R., and Hector L. Marquez, San Juan, P.R., for Robert E. Schneider, Jr., et al.

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

BREYER, Circuit Judge.

The petitioners in these cases, the Puerto Rico Bar Association (the "Colegio"), the Bar Association Foundation (the "Fundacion"), and the Justices of the Supreme Court of Puerto Rico, seek writs of mandamus to compel the federal district court to dismiss suits that five local attorneys have brought against them. The suits, which are brought against other Commonwealth defendants as well, are part of an ongoing course of litigation attacking the constitutionality of statutes that require members of the Puerto Rico bar to support the Colegio. While the petitions were pending here, the district court dismissed some, but not all, of the claims at issue below. Given the present procedural posture of this case, we find that the Justices are entitled to a writ providing them with a portion of the relief that they seek. We find no basis, however, for issuing the writ sought by the Colegio and the Fundacion.

I

The litigation underlying this proceeding concerns the constitutionality of statutes that require members of the Puerto Rico bar to belong to and support the Colegio. Puerto Rico has an "integrated bar," meaning that an attorney who wishes to practice in the Commonwealth must belong to the Colegio. 4 L.P.R.A. Sec. 774. As a condition of membership in the Colegio, members must pay annual dues. If a member does not pay, he is suspended from the Colegio, and an attorney who is suspended from the Colegio loses the right to practice in Puerto Rico. Id. Secs. 774, 781-82. Commonwealth attorneys are also required to support the Colegio and the Fundacion by purchasing forensic stamps and, in their capacities as notaries, notarial stamps. Id. Secs. 783, 1006. The proceeds from the sale of the stamps are given to the Colegio. Id. Sec. 785.

The attack on the constitutionality of these statutes evidently began on November 21, 1977, when the Colegio filed disciplinary complaints in the Commonwealth Supreme Court accusing a large number of attorneys, including three of the five plaintiffs in these cases, of nonpayment of dues. Two of the present plaintiffs, Robert Schneider and Hector Ramos Diaz, responded by attacking the mandatory membership and dues provisions as unconstitutional under both the Commonwealth and the federal constitutions. They had no occasion at the time to challenge the stamp provisions, and they subsequently withdrew their federal (but not Commonwealth) constitutional challenges to the membership and dues provisions. The Commonwealth Supreme Court, relying heavily on federal precedent, held that the membership and dues provisions were valid under the Commonwealth constitution. Colegio v. Schneider, No. 0-77-431 (P.R. Apr. 5, 1982). The court also held, however, that the lawyers were constitutionally entitled to prevent the Colegio from using their dues to support ideological causes with which they disagreed. See Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). The court ordered Schneider and Ramos to pay their dues to the Colegio, subject to a then-unsettled "fund segregation" plan. Schneider and Ramos refused to do so, and on June 3, 1982, the Supreme Court suspended them from the practice of law.

Six days later, Schneider and Ramos sued the Colegio, the Fundacion, the Justices, and the Commonwealth Secretaries of Justice and the Treasury in federal court. Asserting federal jurisdiction on the basis of 42 U.S.C. Sec. 1983, they attacked the membership and dues statutes again, this time expressly on federal constitutional grounds. They also attacked the constitutionality of the stamp statutes insofar as the statutes entailed using public funds for what they regarded as private purposes. Finally, they attacked the Commonwealth disciplinary proceedings as having violated their federal constitutional rights. They sought injunctions barring any of the defendants from enforcing the statutes, and damages from the Justices and the Colegio based upon the disciplinary proceedings.

Within two weeks, three more plaintiffs (only one of whom had been involved in the Commonwealth proceedings) filed similar complaints, which closely tracked the claims of Schneider and Ramos but omitted claims based on the disciplinary proceedings. On June 21, the Justices moved to dismiss all claims against them; the Colegio and the Fundacion followed suit with similar motions. The Justices sought an expedited decision on their motion, and when no such decision was forthcoming by early July, they sought mandamus here. Emphasizing that the litigation in general, and the possibility of discovery in particular, threatened their judicial work, they asked that we require the district court either to grant their dismissal motions outright or at least to reach an immediate decision. We stayed proceedings against them, while leaving the district court free to decide their motion for dismissal. The Colegio and Fundacion also petitioned for mandamus, requesting the same relief.

On September 13, two days before the petitions for mandamus were to be heard in this court, the district court passed on the dismissal motions of the Justices, the Colegio and the Fundacion. In a carefully reasoned opinion, it dismissed all conspiracy claims, all disciplinary and damage claims against the Justices, many of the damage claims against the Colegio and Fundacion, and all claims challenging the outcome of the prior disciplinary proceedings. In essence, it left the Justices subject only to the claims for declaratory and injunctive relief against the enforcement of the membership, dues, and stamp statutes. The Colegio and the Fundacion remained subject to similar claims and certain others. The Justices, the Colegio and the Fundacion continue to seek mandamus in order to have the district court dismiss the remaining claims.

II

Neither the Colegio nor the Fundacion is entitled to a writ of mandamus. It is elementary that mandamus requires a showing that interlocutory relief is necessary to prevent irreparable harm. Whether the Colegio and the Fundacion wish this court to invoke its traditional mandamus power over errors of a jurisdictional nature, its "supervisory" mandamus authority, or its "advisory" mandamus powers, they must demonstrate that something about the circumstances here would make an ordinary appeal inadequate to protect their interests. See Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 385, 74 S.Ct. 145, 149, 98 L.Ed. 106 (1953); United States v. Kane, 646 F.2d 4, 9 n. 7 (1st Cir.1981); United States v. Sorren, 605 F.2d 1211, 1214-15 (1st Cir.1979); Grinnell Corp. v. Hackett, 519 F.2d 595, 599 (1st Cir.), cert. denied sub nom. Chamber of Commerce of the United States v. United Steelworkers of America, 423 U.S. 1033, 96 S.Ct. 566, 46 L.Ed.2d 407 (1975). No such showing has been made. The only plausible injury that a denial of mandamus might inflict on these petitioners is the time and expense of taking part in the litigation below as it pursues its ordinary course. The Supreme Court has made clear in another context that the expense of litigation ordinarily does not constitute irreparable injury, and this court has specifically rejected the general burdensomeness of litigation as a basis for assuming mandamus jurisdiction. See Renegotiation Board v. Bannercraft Co., 415 U.S. 1, 24, 94 S.Ct. 1028, 1040, 39 L.Ed.2d 123 (1974) ("Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury."); In re Sylvania Electric Products, Inc., 220 F.2d 423, 425 (1st Cir.1955); cf. In re Continental Investment Corp., 637 F.2d 1, 5-6 (1st Cir.1980) (collateral-order doctrine). Because they have failed to show how or why they cannot obtain full relief from any of the district court's alleged errors by appealing a final judgment, the Colegio and the Fundacion have failed to establish their right to mandamus.

III

The issues that the Justices raise are more difficult. As will be discussed below, they arguably suffer a special institutional harm by being forced to remain parties in this suit against their will. Moreover, at least one of their arguments is "jurisdictional" in nature--a traditional predicate for the issuance of a writ of mandamus. United States v. Sorren, supra. We therefore describe their status in the suit and their jurisdictional argument in detail.

The Justices are now essentially nominal parties in the suits against them. The district court has addressed their dismissal motion, mooting their alternative prayer that we order the district court to make a decision. Moreover, the court has decided, by and large, in their favor. All damage claims, all conspiracy claims, and (in the district court's words) all claims "seeking in any way to modify, alter, challenge or otherwise affect the outcome" of the prior disciplinary proceedings, have been dismissed. The suits against the Justices have been reduced to conventional prospective attacks on the constitutionality of Commonwealth statutes, seeking traditional injunctive and...