Aponte v. Calderon, No. CIV. 01-1963(JAF).

• Decision Date: 29 November 2001
• Docket Number: No. CIV. 01-1963(JAF).
• Citation: 176 F.Supp.2d 135
• Parties: Jorge E. APONTE and his wife; Daniel Pagan, his wife, and the conjugal partnership constituted between them, Plaintiffs, v. Sila M. CALDERON, in her personal and official capacity as Governor of Puerto Rico, her husband, Adolfo Krans, and the conjugal partnership constituted between them; David Noriega-Rodriguez, in his personal and official capacity as President of the Independent Citizens' Commission to Evaluate Governmental Transactions, his wife, Jane Doe, and the conjugal partnership constituted between them; Ileana Colon-Carlo, her husband John Doe, and the conjugal partnership constituted between them; Carmen Rita Velez-Borras, her husband John Doe, and the conjugal partnership constituted between them; Pedro Galarza, his wife Jane Doe and the conjugal partnership constituted between them; Pedro Lopez-Oliver, his wife Jane Doe and the conjugal partnership constituted between them; Angel Hermida, his wife Jane Doe and the conjugal partnership constituted between them; all in their personal and official capacities as members of the above-mentioned Commission; Unknown Defendants X, Y, and Z; Insurance Companies A, B, and C, Defendants.
• Court: U.S. District Court — District of Puerto Rico

176 F.Supp.2d 135

Jorge E. APONTE and his wife; Daniel Pagan, his wife, and the conjugal partnership constituted between them, Plaintiffs, v. Sila M. CALDERON, in her personal and official capacity as Governor of Puerto Rico, her husband, Adolfo Krans, and the conjugal partnership constituted between them; David Noriega-Rodriguez, in his personal and official capacity as President of the Independent Citizens' Commission to Evaluate Governmental Transactions, his wife, Jane Doe, and the conjugal partnership constituted between them; Ileana Colon-Carlo, her husband John

Doe, and the conjugal partnership constituted between them; Carmen Rita Velez-Borras, her husband John Doe, and the conjugal partnership constituted between them; Pedro Galarza, his wife Jane Doe and the conjugal partnership constituted between them; Pedro Lopez-Oliver, his wife Jane Doe and the conjugal partnership constituted between them; Angel Hermida, his wife Jane Doe and the conjugal partnership constituted between them; all in their personal and official capacities as members of the above-mentioned Commission; Unknown Defendants X, Y, and Z; Insurance Companies A, B, and C, Defendants.

No. CIV. 01-1963(JAF).

United States District Court, D. Puerto Rico.

November 29, 2001.

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John F. Nevares, Smith & Nevares, San Juan, PR, Carlos R. Ramirez, San Juan, PR, Carlos Lugo-Fiol, San Juan, PR, for Jorge E. Aponte, Daniel Pagan.

Salvador J. Antonetti-Stutts, Director, Dept. of Justice of PR, Federal Litigation Div., San Juan, PR, for Sila Maria Calderon, Adolfo Krans, Conjugal Partnership Krans-Calderon.

Rafael Escalera-Rodriguez, Nestor J. Navas-DÁcosta, Reichard & Escalera, San Juan, PR, for David Noriega-Rodriguez, Ileana Colon-Carlo, Carmen Rita Velez-Borras, Pedro Galarza, Pedro Lopez-Oliver, Angel Hermida.

OPINION AND ORDER

FUSTE, District Judge.

I. Introduction

This is an action for a declaratory judgment, injunctive relief, and damages, in which Plaintiffs seek redress for the purported violation by Defendants of their constitutional rights to freedom of speech and association, to the equal protection of the laws, and to due process of law, as guaranteed by the First, Fifth, and Fourteenth Amendments to the United States Constitution. U.S. CONST. amends. I, V, XIV. The complaint is brought under the provisions of 42 U.S.C. § 1983 (1988 & Supp. I 2000).¹ Jurisdiction is invoked under 28 U.S.C. §§ 1331 and 1343 (1993).

Plaintiffs challenge the constitutionality of the Independent Citizens' Commission to Evaluate Government Transactions, popularly known as the Blue Ribbon Commission, created by Defendant Governor Sila M. Calderón, of the Commonwealth of Puerto Rico, through Executive Order No. 2001-06.

Prior to the November 2000 general election, Sila M. Calderón, as gubernatorial candidate for the Popular Democratic Party, publicly accused the administration of the New Progressive Party in power from 1992 to 2000 with wide-ranging public corruption.² The Popular Democratic Party supports maintenance of the current political status of Puerto Rico in relation to the United States. See 48 U.S.C. §§ 731-914 (1982 & Supp. I 2001). The New Progressive Party advocates for Puerto Rico to become a state. As part of the political platform of the Popular Democratic Party, then-candidate Calderón promised to create a Blue Ribbon Commission to investigate corruption committed by public officials under the New Progressive Party administration.

Plaintiffs Jorge E. Aponte and Daniel Pagán were high-ranking officials in the targeted New Progressive Party administration. Plaintiff Aponte, a certified public accountant ("CPA"), was the Director of the Office of Management and Budget of the Commonwealth of Puerto Rico during the years 1993 to 2000. Plaintiff Pagán, an engineer, was the outgoing Secretary of the Puerto Rico Department of Natural and Environmental Resources (known by its Spanish acronym, "DRNA"). Both officials responded directly to the New Progressive Party Governor, Dr. Pedro Rosselló, and they held their public positions until December 31, 2000.

Defendants are Governor Sila M. Calderón and the members of the Blue Ribbon Commission. The members of the Blue Ribbon Commission all sympathize with the present Popular Democratic Party administration and its quest to investigate the preceding administration. At the November 6-8, 2001 hearing held before this court, none admitted their specific political party affiliation, and all appear to be supporters of political ideologies other than that of the New Progressive Party or so-called independent voters.

II. The Creation of the Blue Ribbon Commission

The moving force behind the formation of the Blue Ribbon Commission is Governor Sila M. Calderón's political promise to investigate public corruption by officers of the outgoing New Progressive Party administration. Prior to the promulgation of Executive Order 2001-06, Defendant Calderón requested the persons she had selected to be members of the Commission to conduct research regarding the constitutionality of the body she intended to create. With the exception of one Defendant, who is a CPA, all of the past and current members of the Commission hold law degrees. Three Defendants are former judges. The Commissioners performed extensive research on the constitutionality of the Commission and its precise purposes prior to Defendant Calderón's declaration of Executive Order 2001-06.³

The enabling executive order cites unprecedented corruption in public management, which, according to its terms, requires total eradication to reestablish the trust of the citizens of Puerto Rico in government institutions. The executive order seeks the cooperation of all public employees and the entire citizenry in the fight against public corruption and conceives the independent commission composed of private citizens to be representative of society. The commission is given power to:

FIRST: ... evaluat[e] significant government transactions, both of the past and present administrations, which in the judgment of the Commission itself, warrant evaluation.

SECOND: ... (a) evaluate significant government transactions conducted by agencies of the Executive Branch of the government of the Commonwealth of Puerto Rico, both during the past and present administrations, which in the judgment of the Commission itself warrant evaluation.... Those transactions shall be considered significant which, in the Commission's judgment, whether because of the amount involved therein or because of other characteristics, have the potential of substantially impacting on areas such as the government structure, the public treasury, the country's economy and infrastructure, or the citizenry's trust in government institutions.

(b) ... request from any natural or artificial person, whether or not a public functionary or employee, every sort of information regarding any government transaction which is under evaluation by the Commission, when in the judgment of the Commission itself, that information is pertinent to the evaluation process.

(c) ... require the assistance of functionaries belonging to the Executive Branch in order to obtain, through the mechanisms provided by law, the appearance of any person or the delivery of any document or object, whensoever this shall be necessary and warranted.

THIRD: ... issue to the Governor such reports as the Commission itself deems appropriate, with the partial or final results of the evaluations which the Commission has carried out or is carrying out. Said reports shall include such findings as have resulted from those evaluations, and may also include recommendations, both short- and long-term, that such actions as the Commission deems advisable be taken, including, but not limited to, recommendations that new statutory or regulatory rules be adopted to govern such transactions or that existing ones be modified, or that administrative, civil or criminal procedure be undertaken against certain persons. Such reports shall be disclosed solely by the Governor, except when in her judgment this may interfere with the successful carrying out of such actions as may be necessary in light of the contents of the report in particular.

FOURTH: The Governor's Office shall provide the Commission with an office where it may perform its functions. The Commission's administrative operations shall be carried out through the Department of State. The Department of State, the Department of Justice, and the other government agencies under the authority of the Governor's Office, are authorized and ordered to provide the Commission with such support as is necessary to enable the Commission to successfully carry out its mission, including, but not limited to, technical support, support, of personnel equipment [sic], and the hiring by the agency of such additional staff as the Commission may need. Requests for support from the Commission shall be channeled through the Chief of Staff.

....

SIXTH: ... make its decisions by a majority of the total number of its members.... The work of the Commission shall be carried out in strict confidentiality. The information to which the members of the Commission have access as a result of their functions on the Commission shall be deemed strictly privileged, and may not be revealed for use by any of them for any purpose other than the work of the Commission. Subject to the provisions of this Executive Order, the Commission may adopt such other rules as it deems appropriate to govern its own internal functioning.

SEVENTH: The chairperson of the Commission shall organize and direct the work of the Commission, and shall be its only spokesperson. He or she may carry out any other activity which is entrusted to him or her by the Governor or by the Committee [sic] which is necessary to better fulfill this Executive Order.

Docket Document No. 7, Exh. 1 (...