Hernandez-Lopez v. Puerto Rico, Civil No. 98-2157(SEC).

• Court: United States District Courts. 1st Circuit. District of Puerto Rico
• Writing for the Court: Casellas
• Citation: 27 F.Supp.2d 302
• Parties: Carlos M. HERNANDEZ-LOPEZ, et al., Plaintiffs, v. Commonwealth of PUERTO RICO, State Elections Commission, Defendants.
• Docket Number: Civil No. 98-2157(SEC).
• Decision Date: 06 November 1998

27 F.Supp.2d 302 Carlos M. HERNANDEZ-LOPEZ, et al., Plaintiffs,
v.
Commonwealth of PUERTO RICO, State Elections Commission, Defendants. Civil No. 98-2157(SEC). United States District Court, D. Puerto Rico. November 6, 1998.

Page 303

Carlos M. Hernández-López; Hernández-Colón & Hernández-López; Mayaguez, PR, for Plaintiffs.

Ramón L. Walker-Merino; San Juan, PR, Pedro A. Delgado-Hernández; O'Neill & Borges; Hato Rey, PR, Gustavo A. Gelpí-Abarca; Department of Justice; Federal Litigation Division; San Juan, PR, for Defendants.

OPINION AND ORDER

CASELLAS, District Judge.

Pending before the Court is the Commonwealth of Puerto Rico and the State Elections Commission's ("defendants") Notice of Removal, filed October 16, 1998 (Docket # 1), seeking removal of the above-captioned action from the Superior Court of the Commonwealth of Puerto Rico, Mayaguez Part, to this Court. On that same date, defendants filed a motion seeking consolidation of this action with Civil Case No. 98-2031(CCC), which, according to defendants, involves similar questions of law and fact (Docket # 3). On October 19, 1998, plaintiffs, Carlos M. Hernández-López and the Frente Autonomista Mayaguezano, filed an opposition to defendants' request for removal and a request for urgent remand (Docket # 5).

For the reasons stated below in this Opinion and Order, defendants' notice of removal (Docket # 1) is DENIED and plaintiffs' request for urgent remand (Docket # 5) is GRANTED. The above-captioned action shall be REMANDED to the Superior Court of the Commonwealth of Puerto Rico, Mayaguez Part, for all further proceedings, pursuant to 28 U.S.C. § 1447(c).

Procedural Background

Plaintiffs, Frente Autonomista Mayaguezano ("FAM") and its President, Carlos Hernández-López, originally filed this action before the Superior Court of the Commonwealth of Puerto Rico, seeking injunctive and declaratory relief against the implementation of Law No. 249, (hereinafter "the Act" or "Law No. 249"), which provides for the holding of a plebiscite on the political status of Puerto Rico on December 13, 1998.

Plaintiff Hernández-López is the President of FAM, which is "a non-incorporated association of citizens backing the development of the present political condition of Puerto Rico toward the establishment of a bilateral compact of Free Association with the United States." (Complaint, certified translation, para. 7). In their complaint, plaintiffs state that "plaintiff Hernández has defended the establishment of a relationship between the sovereign peoples of Puerto

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Rico and the United States based on a bilateral compact of free association." They add that "Hernández has taken part in radio and television programs, including presentations before the Status Commission of the Popular Democratic Party. Likewise, he has defended his political beliefs before the Congress of the United States and the Legislature of Puerto Rico." (Complaint, certified translation, para. 6).

Plaintiffs claim that the Act is unconstitutional because it violates sections 1, 2, 4, 6, and 7 of the Bill of Rights of the Constitution of Puerto Rico (Const. of P.R., Art. II, Sections 1¹, 2², 4³, 6⁴, 7⁵).

Plaintiffs asserted the jurisdiction of the Superior Court of the Commonwealth of Puerto Rico based on the Constitution of the Commonwealth of Puerto Rico, the Puerto Rico Civil Rights Act, and the Electoral Law of Puerto Rico, 16 L.P.R.A. § 3016(a).⁶

Defendants are the Commonwealth of Puerto Rico, as the entity which adopted Law No. 249, and the State Elections Commission, the entity in charge of implementing said law.

Factual Background — The Enactment and Implementation of Law No. 249

On July 25, 1998 the Governor of Puerto Rico, Hon. Pedro Rosselló, announced that legislation would be submitted for the holding of a plebiscite on the political status of Puerto Rico. Subsequently, said legislation was submitted and approved by both branches of the Puerto Rico Legislature. On August 17, 1998 the Governor signed the aforementioned bill, converting it into Law No. 249.

Law No. 249 provides the people of Puerto Rico with four electoral options regarding the future political status of Puerto Rico. Among these options, the Legislature included an option known as "Free Association."⁷

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According to the allegations contained in the complaint, prior to the enactment of Law No. 249, plaintiff Hernández, on behalf of FAM, appeared before the Government Commission of the House of Representatives to discuss the proposed plebiscite bill. Furthermore, FAM submitted a paper to the Government and Federal Affairs Commission of the Puerto Rico Senate.

Article 10 of the Plebiscite Act provides that "[a]ny group, organization or entity may request to certify to officially represent any option not represented by a political party." Pursuant to Article 10 of the Act, on September 2, 1998, plaintiff Hernández, on behalf of FAM, requested from the State Elections Commission (the "Commission") that it certify FAM as an entity entitled to represent the Free Association option. On that same date, the Secretary of the Commission denied FAM's application, informing FAM that the term provided by law to request observer status in the plebiscite process had already expired.

FAM sent a subsequent letter to the Commission, clarifying that FAM intended to participate in the plebiscite process not as an observer, but as representative of the Free Association option. On September 3, 1998 the Commission issued a final denial of FAM's application to represent the Free Association option, indicating to FAM that it did not comply with the requirements set forth in Article 10(1) of the Act.

Article 10(1) of the Act provides as follows:

The State Elections Commission shall proceed to issue a certification crediting said petition, as long as the group, organization, or entity would comply with the following requirements:

(1) If as of the date of its certification by the State Elections Commission, said group, organization, or entity had a juridical standing at the time this Act was enacted and had a public and acknowledged background of defending the option at bar.

Specifically, plaintiffs seek to declare Law No. 249 unconstitutional because: (a) "it excludes the participation in the electoral process of those organizations which are not incorporated and have no prior background in the defense of certain electoral alternative;" (b)"it excludes groups which are not political parties from participating in the Plebiscite if a political party later on decides to represent the same electoral option that the group;" and (c)"it discriminates on behalf of political parties in the distribution of electoral funds." (Complaint, certified translation, para. 2).

Defendants seek to remove the above-captioned action to this Court pursuant to the federal removal statute, 28 U.S.C. § 1441(b), claiming that plaintiffs' action is removable because the suit contains issues of federal law which are an essential element of plaintiffs' cause of action. In particular, defendants claim that plaintiffs' second cause of action, where they allege the unconstitutionality of the Act's requirement that a group, organization, or entity have a "public and acknowledged history of defending" the Free Association option, "necessarily entails a determination of whether free association has been recognized under United States and international law prior to Law No. 249 coming into effect." (Notice of Removal, Docket # 1, at 6). To that effect, defendants argue that "[t]he issue of whether the United States has recognized free association, and if so, whether this occurred prior to the enactment of Law No. 249, raises a fundamental, essential, and outcome-determinative issue of federal law, no matter whether plaintiffs characterize it as one of state law." Id.

Plaintiffs counter that the second cause of action contained in the complaint does not arise under federal law, because, contrary to defendants' assertions, "[n]owhere in their Complaint did plaintiffs question the existence, source or definition of Free Association as contained in the Plebiscite Law." (Plaintiffs' Request for Remand, Docket # 5,

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at 4). Plaintiffs argue that their claim of the constitutional infirmity of Article 10(1) has nothing to do with the way that the Free Association has been defined, or whether the existence of Free Association as an option had been previously recognized in either United States or international law. Instead, they argue that they are basing their claim solely on the fact that Free Association had never been previously offered to the Puerto Rican electorate as a status option in a plebiscite. Furthermore, plaintiffs claim that the "long and publicly recognized history of defending the alternative" requirement is in violation of the Constitution of the Commonwealth of Puerto Rico, not the laws or the Constitution of the United States. Thus, they argue that no possible basis for asserting federal jurisdiction exists in this instance.

Applicable Law — Grounds for Removal

The removal statute, 28 U.S.C. § 1441, provides in pertinent part that "[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the United States shall be removable without regard to the citizenship or residence of the parties." 28 U.S.C. § 1441(b). Under section 1441, "an action is removable to a federal court only if it might have been brought there originally." 14A Wright, Miller & Cooper, Federal Practice and Procedure § 3721, at 189 (1985), quoted in Cervantez v. Bexar County Civil Service Commission, 99 F.3d 730, 732-33 (5th Cir.1996). See also Bally v. National Collegiate Athletic Association, 707 F.Supp. 57, 58 (D.Mass.1988). Under 28 U.S.C. § 1447(c), a party opposing removal of the action may file a motion to remand, and a remand pursuant to section...