El Dia, Inc. v. Hernandez Colon

• Decision Date: 18 July 1991
• Docket Number: Civ. No. 91-1510 (PG).
• Citation: 783 F. Supp. 15
• Parties: EL DIA, INC., et al., Plaintiffs, v. Rafael HERNANDEZ COLON, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

783 F. Supp. 15

EL DIA, INC., et al., Plaintiffs, v. Rafael HERNANDEZ COLON, et al., Defendants.

Civ. No. 91-1510 (PG).

United States District Court, D. Puerto Rico.

July 18, 1991.

COPYRIGHT MATERIAL OMITTED

Daniel R. Domínguez, Hato Rey, P.R., for plaintiffs.

Lino J. Saldaña, Santurce, P.R., and Marcos A. Ramírez, Hato Rey, P.R., for defendants.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

On April 22, 1991, plaintiffs, El Dia, Inc., a corporation organized under the laws of the Commonwealth of Puerto Rico, which publishes a daily newspaper of general circulation in the Commonwealth of Puerto Rico, and Andrea Martinez, in her dual capacity as a journalist working for El Día, Inc., and as a private citizen, brought a civil action under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., against Rafael Hernández Colón and Héctor Rivera Cruz, in their respective capacities as Governor and Secretary of Justice of the Commonwealth of Puerto Rico and in their personal capacities, and against the Commonwealth of Puerto Rico, seeking declaratory, temporary and permanent injunctive relief from the enforcement of the Executive Order 91-15 (Boletín Administrativo Núm. OF-1991-15) issued by the Governor of Puerto Rico, Honorable Rafael Hernández Colón, on April 15, 1991.

In their complaint, plaintiffs alleged that the aforementioned executive order is unconstitutional on its face because of certain dispositions it contains which run counter to an alleged constitutional right of access to public records and documents guaranteed to them by the First Amendment to the Constitution of the United States. Plaintiffs further claimed infringement of their due process rights under the Fifth and Fourteenth Amendments.¹

On April 29, 1991, an order was issued to show cause why the relief requested by plaintiffs should not be granted. A hearing was held on May 3, 1991. At that time this Court stated that this case struck at the core of the First Amendment, that it would not wait for the final outcome of a suit filed in the Superior Court of Puerto Rico, San Juan Part, which claimed violation to the Constitution of the Commonwealth of Puerto Rico exclusively, and instructed the parties to file simultaneous briefs by May 13, 1991.² The parties proceeded to comply with the Court's directive as the defendants filed a motion to dismiss and plaintiffs a memorandum on the unconstitutionality of the executive order. Replies to each other's briefs were later filed.

Subsequently, on May 14, 1991, defendants answered the original complaint and averred that plaintiffs did not raise a federal question since "there is no right under the First Amendment of the U.S. Constitution to access to documents in the control of the Commonwealth of Puerto Rico." Defendants further alleged that the claims against the Commonwealth of Puerto Rico were barred by the Eleventh Amendment to the U.S. Constitution and that the Secretary of Justice, Héctor Rivera Cruz, was not a proper defendant. Defendants filed their answer to the amended complaint on June 24, 1991.

On May 24, 1991, plaintiffs filed a motion requesting summary judgment. This was followed by defendants' "Cross Motion Requesting Summary Judgment," in which defendants proceeded to accept plaintiffs' statements of material facts as well as reporter Andrea Martínez's facts developed in the sworn statement she made and which was annexed to the original complaint. The facts in this case are, therefore, undisputed.

A court shall enter summary judgment forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In this case both parties have petitioned summary judgment. For the reasons stated below, we grant summary judgment in favor of plaintiffs and deny summary judgment to defendants. We first address, however, defendants' defenses as to the Commonwealth's immunity from federal suits and as to Héctor Rivera Cruz not being a proper party to this action.

The Eleventh Amendment to the U.S. Constitution bars suits in federal court by citizens of a state against the unconsenting state. Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 110 S.Ct. 1868, 1872, 109 L.Ed.2d 264 (1990); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 662-663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). This principle is extensive to Puerto Rico, Lipsett v. University of Puerto Rico, 745 F.Supp. 793, 795 (D.P.R.1990). A state's immunity can, nevertheless, be abrogated by Congress. Dellmuth v. Muth, 491 U.S. 223, 227-228, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181 (1989). However, section 1983, under which the present case has been brought, does not abrogate eleventh amendment immunity. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Thus, we hold that the present action cannot be entertained against the Commonwealth of Puerto Rico and, accordingly, dismiss the action as applied to the Commonwealth.

Defendants have also contended that the Secretary of Justice is not a proper party to this action. In order for a state officer to be properly brought in a suit under 42 U.S.C. § 1983 such officer must be in some manner responsible for the alleged deprivation of rights. Dommer v. Crawford, 653 F.2d 289, 291 (7th Cir.1981). In the complaint plaintiffs only allege that the Secretary of Justice is "the executive officer who represents the Commonwealth of Puerto Rico in all civil or criminal actions against the government." Nowhere have plaintiffs alleged a specific duty or responsibility of such official that in some manner makes such official responsible for the alleged deprivations of plaintiffs' rights. Nor have they presented evidence of the Secretary of Justice's personal participation in any of the deprivations alleged in plaintiffs' claims. Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982). We, therefore, hold that Héctor Rivera Cruz is not a proper party to the instant action and, therefore, dismiss the case against him both in his official and personal capacities.

Standing

The Supreme Court has stated that in order for a plaintiff to have standing the court must ensure that the party seeking relief has alleged "such a personal stake in the outcome of the controversy as to assure concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Plaintiffs in this action are a newspaper company and a reporter who filed a sworn statement showing her continuous involvement in the gathering of news from governmental agencies. In Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed.2d 154 (1972), it was held that there is standing when "the challenged exercise of governmental power is regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions or compulsions that he is challenging." There can be no doubt that plaintiffs are presently and will be prospectively subjected to the executive order since it was put into effect as of April 15, 1991, and the same governs the production of documents in all executive agencies, therefore, effectively regulating and or curtailing the information plaintiffs can gather from governmental sources.

We find, then, that plaintiffs have shown that the executive order effectively deters them in obtaining information from the government, thus, they have a cognizable injury that can be redressed by this Court. Moreover, the fact that plaintiffs have undoubtedly been subjected to the executive order since April 15, 1991, gives them the right to the declaratory relief petitioned. In this sense, "the circumstances show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).

Also, in the instant case, plaintiffs have challenged the facial validity of the executive order alleging its overbreadth. In such situation, the Supreme Court has stated in Freedman v. State of Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965), that "in the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative officer, whether or not his conduct could be proscribed by a properly decision statute, and whether or not he applied for a license." In Strasser v. Doorley, 432 F.2d 567, 568 (1st Cir.1970), the U.S. Court of Appeals for the First Circuit stated that "an attempt to comply with an ordinance or statute is not a condition precedent to attacking it on its face as an unconstitutional burden on free speech." As for the standing of plaintiff Andrea Martinez de Jesús, in her capacity as a citizen, Freedman's expressions quoted above are on point, but suffice it to say that "the interest necessary to support the issuance of a writ compelling access has been found for example, in the citizen's desire to keep a watchful eye on the working of public agencies." Nixon v. Warner Comm., Inc., 435 U.S. 589, 597-598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1958). For the reasons stated above, it is, therefore, concluded that plaintiffs have standing to proceed with the present action.

We now turn to the basic question of law raised in this suit. As stated before, there are no issues of fact in...