Ortiz v. Hernandez Colon, Civ. No. 8-73.

Citation385 F. Supp. 111
Decision Date16 January 1974
Docket NumberCiv. No. 8-73.
PartiesGerman ORTIZ et al., Plaintiffs, v. Hon. Rafael HERNANDEZ COLON, Governor of the Commonwealth of Puerto Rico, et al., Defendants.
CourtU.S. District Court — District of Puerto Rico

COPYRIGHT MATERIAL OMITTED

Nachman Felstein & Gelpi, San Juan, P. R., for plaintiffs.

Dubon & Dubon, San Juan, P. R., for defendants.

Before COFFIN, Circuit Judge, CANCIO, Chief District Judge, and PESQUERA, District Judge.

OPINION

COFFIN, Circuit Judge.

Plaintiffs, on behalf of themselves and all the registered voters of the Commonwealth of Puerto Rico who reside within San Juan, seek to enjoin five assemblymen within the San Juan Municipal Assembly, appointed by the Governor of Puerto Rico, from performing their official acts. They also seek a declaratory judgment that L.P.R.A., tit. 21, § 1152 (b), which authorizes such appointments, unconstitutionally deprives the citizens of San Juan of the equal protection of the laws, under the principle of "one-person, one-vote".1 This case comes to us on remand from the Court of Appeals which vacated the judgment of the District Court, denying plaintiffs' request for a three judge court. Ortiz v. Colon, 1 Cir., 475 F.2d 135, 1973.

The facts are simple and uncontested. San Juan, capital city of the Commonwealth, contains approximately twenty-five per cent of the island's population. The statutory scheme for the composition of the Municipal Assembly of San Juan provides for twelve elected assemblymen and five additional assemblymen appointed by the Governor. Legislation before the Municipal Assembly normally requires approval by a majority of the assemblymen, although important legislation, such as the issuance of bonds or the entering into contracts with the federal government, requires a two-thirds majority.

At the outset, we fully recognize that local governments require flexibility and room for innovation if they are to meet complex urban problems which are increasingly regional in character. See Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971); Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1966). "To stay experimentation in things social and economic is a grave responsibility." New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1931) (Brandeis, J., dissenting). City boundaries often fail to reflect the economic and social interdependence of larger municipal regions. Political decisions within one local jurisdiction often have a direct impact upon other local jurisdictions within the same area, since the jurisdictional boundaries hail from a simpler era when distinct communities had their own distinct concerns. In short, the modern megalopolis, straddling cities, suburbs, and rural countryside, requires new forms of government which are responsive to a larger, more complicated, and more varied constituency, See Dusch v. Davis, 387 U.S. 112, 117, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1966). State governments have already begun to experiment with regional government in the form of metropolitan planning councils, regional transportation authorities, and associations of local governments, whose members are either appointed directly by the legislature or the governor or elected, pyramid-style, by the elected representatives of local communities.2 We also give full deference to the traditional doctrine that municipal governments are mere "instrumentalities" of the states, created as convenient agencies for the exercise of such of the government powers of the states as may be entrusted to them, and that the extent of their powers and the extent of their territories rest in the absolute discretion of the states. Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 12 L. Ed.2d 506 (1964); Hunter v. City of Pittsburg, 207 U.S. 161, 178, 28 S.Ct. 40, 52 L.Ed. 151 (1907); Padron v. People of Puerto Rico, 142 F.2d 508, cert. denied, 323 U.S. 791, 65 S.Ct. 427, 89 L.Ed. 630 (1944).

Neither the policy favoring pluralism and experimentation nor the doctrine of dependence of municipalities on state power, however, can wholly shield state-dictated municipal arrangements from constitutionally oriented judicial oversight. The Equal Protection clause of the Fourteenth Amendment3 "reaches the exercise of state power however manifested, whether exercised directly or through the subdivisions of the State." Avery v. Midland County, 390 U.S. 474, 479, 88 S.Ct. 1114, 1117, 20 L.Ed.2d 45 (1967). Moreover, "institutions of local government have always been a major aspect of our system, and their responsible and responsive operation is today of increasing importance to the quality of life of more and more of our citizens." Id. at 481, 88 S.Ct. at 1118. The delicate challenge for the courts is to discern and identify constitutional limits within which these new forms of municipal government may develop without trampling underfoot the constitutional rights of their citizenry.

In the present case, plaintiffs contend that the legislative scheme for constituting San Juan's Municipal Assembly results in an unconstitutional deprivation of equal protection in that residents of San Juan are denied "one-person, one-vote". If, by this, plaintiffs mean that the votes of residents of San Juan, taken as a whole, are "diluted" relative to the votes of residents of other Puerto Rican cities in their own municipal elections, we think their contention is unfounded. To argue that voting strength is "diluted", under equal protection analysis, implies that one group of citizens has more voting power than another group within the same constituent assembly. It is no violation of equal protection that citizens of Puerto Rico who live in cities outside San Juan may have more direct control over their municipal assemblies than residents of San Juan have over their own. A state has wide authority to classify cities differently, and institute different voting schemes within each. Missouri v. Lewis, 101 U.S. 22, 31, 25 L.Ed. 989 (1897); see also Opinion of the Justices, 277 Ala. 630, 173 So.2d 793 (1965).

Nor does the Equal Protection clause prohibit a state from permitting non-residents of a municipality to vote in the municipal elections. Allowing citizens who possess only a remote or indirect interest in the outcome of an election to vote in that election does not necessarily "dilute" the votes of those with a more direct interest. Glisson v. Mayor and Councilmen of Savannah Beach, 346 F.2d 135 (5th Cir. 1965).

To the extent, however, that, in claiming a denial of "one-person, one-vote", plaintiffs contend that San Juan's scheme for constituting its Municipal Assembly dilutes the voting power of some San Juan residents relative to other San Juan residents, we agree. "The concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged." Reynolds v. Sims, supra, 377 U.S. at 565, 84 S.Ct. at 1383. Here, residents of San Juan who vote in the statewide gubernatorial election for the winning candidate gain the indirect representation within the Municipal Assembly, of the five assemblymen appointed by the Governor. In effect, residents of San Juan who, in voting for governor, find themselves in accord with a majority of their fellow electors — many of whom may reside outside the city — have significantly more voting power in their own Municipal Assembly than residents of San Juan who supported a losing gubernatorial candidate. The Governor's five appointees owe their allegiance, in large part, to those voters who supported the Governor in the last gubernatorial election, voters whose interests and views they are likely to represent. And because the appointees are members of the same legislative body, with the same functions and duties, as the elected members, a local minority of voters within San Juan that happens to be part of a statewide majority may gain a majority of votes within the Municipal Assembly. Such a minority need elect only one assemblyman directly to defeat an issue requiring a two thirds vote; and it can run all of the affairs of San Juan if it succeeds in electing directly a mere third of the elected members. This additional representation for the minority, albeit indirect, results in systematic discrimination against those San Juan voters who did not support the winning gubernatorial candidate.

In a consistent line of decisions, beginning with Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), dealing with congressional apportionment, and Reynolds v. Sims, supra, dealing with state legislative apportionment, and extending through Avery v. Midland County, supra, and Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1969), both dealing with local legislative bodies, the Supreme Court has held that "in situations involving elections, the States are required to insure that each person's vote counts as much, insofar as it is practicable, as any other person's." Hadley, supra, 397 U.S. at 54, 90 S.Ct. at 794. While the particular election schemes involved in these cases have varied, "in each case a constant factor is the decision of the government to have citizens participate individually by ballot in the selection of certain people who carry out governmental functions." Id. at 54, 90 S.Ct. at 794. The initial decision to select a legislative body by popular election acts as a threshold; once that decision has been made, then the Equal Protection clause of the Fourteenth Amendment requires that each qualified voter be given the same opportunity to determine the membership of that legislative body as every other qualified voter.4 In determining the membership of San Juan's Municipal Assembly, however, some San Juan residents have more opportunity than others.

The Supreme Court has tended to use one of two standards for review when...

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5 cases
  • Ortiz v. Hernandez Colon
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 28, 1975
  • Cintron-Garcia v. Barcelo
    • United States
    • U.S. Court of Appeals — First Circuit
    • January 27, 1982
    ...cases-see Wise v. Lipscomb, 437 U.S. 535, 540, 98 S.Ct. 2493, 2497, 57 L.Ed.2d 411 (1978)-and others as well-see Ortiz v. Hernandez Colon, 385 F.Supp. 111 (D.P.R.1974) (three judge court) (see 511 F.2d 1080 (1st Cir. 1975) and 429 U.S. 1031, 97 S.Ct. 721, 50 L.Ed.2d 742 (1977)). This approa......
  • Burton v. WHITTIER VOCATIONAL REGIONAL SCH. DIST., Civ. A. No. 76-4375-T.
    • United States
    • U.S. District Court — District of Massachusetts
    • April 12, 1978
    ...systems nevertheless have proportional representation on the committees, in contrast to the Whittier system. In Ortiz v. Hernandez Colon, 385 F.Supp. 111 (D.P.R.1974), vacated and remanded for consideration of mootness, 429 U.S. 1031, 97 S.Ct. 721, 50 L.Ed.2d 742 (1977), a three-judge court......
  • Burton v. Whittier Regional Vocational Technical School Dist.
    • United States
    • U.S. Court of Appeals — First Circuit
    • November 20, 1978
    ...1383, 12 L.Ed.2d 506 (1964). As the court below pointed out, a similar argument on equal protection was presented in Ortiz v. Hernandez Colon, 385 F.Supp. 111 (D.C.P.R.1974), Vacated and remanded for consideration of mootness, 429 U.S. 1031, 97 S.Ct. 721, 50 L.Ed.2d 742 (1977), and the cour......
  • Request a trial to view additional results

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