Partido Nuevo Progresista v. Hernandez Colon, Civ. No. 75-619.

• Decision Date: 26 March 1976
• Docket Number: Civ. No. 75-619.
• Parties: PARTIDO NUEVO PROGRESISTA et al., Plaintiffs, v. Rafael HERNANDEZ COLON, Individually and as Governor of the Commonwealth of Puerto Rico, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

415 F. Supp. 475

PARTIDO NUEVO PROGRESISTA et al., Plaintiffs, v. Rafael HERNANDEZ COLON, Individually and as Governor of the Commonwealth of Puerto Rico, et al., Defendants.

Civ. No. 75-619.

United States District Court, D. Puerto Rico.

March 26, 1976.

Baltasar Corrada Del Rio, San Juan, P. R., for plaintiffs.

Carlos R. Rios, Secretary of Justice, Miriam Naveira de Rodon, Sol. Gen., for the Commonwealth of Puerto Rico, Peter Ortiz, Deputy Sol. Gen., Dept. of Justice, Commonwealth of Puerto Rico, San Juan, P. R., for defendants.

Before COFFIN, Circuit Judge, TOLEDO, Chief District Judge, and TORRUELLA, District Judge.

OPINION

PER CURIAM.

We are called upon to decide the constitutionality of certain provisions of Act No. 24 of May 22, 1975 (16 LPRA 2089) of the Commonwealth of Puerto Rico. This statute is an amendment to the Commonwealth's Electoral Code (16 LPRA 2001 et seq.). In deciding this issue we must weigh the rights of freedom of speech and association in counterbalance to the police power of the state to regulate its electoral processes.

On June 5, 1975, Plaintiff Partido Nuevo Progresista (hereinafter called "Plaintiff PNP") and several individual Plaintiffs,¹ filed an action claiming that the mentioned statute violates the First, Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States. Plaintiffs sought the convening of a Three-Judge District Court, pursuant to 28 U.S.C. 2281 and 2284 for the purpose of declaring said statute unconstitutional and enjoining its enforcement. On June 6, 1975 the District Court issued a temporary restraining order against the enforcement, pendente lite, of the statute in question. On June 23, 1975 Plaintiffs filed an amended complaint alleging in substance claims similar to those contained in the original complaint. On July 3, 1975 a temporary restraining order was issued pursuant to 28 U.S.C. 2284(3), which order was later amended on July 16, 1975, enjoining the enforcement of the law in question until a decision by the Three-Judge District Court.

Plaintiff PNP is a duly recognized political party registered as such in accordance with the laws of the Commonwealth of Puerto Rico.² In the general elections held on November 7, 1972 said party obtained approximately 44% of the votes cast. In these elections Plaintiff PNP elected several of its candidates, including some members to the Senate and House of Representatives of the Commonwealth, wherein it is now the principal minority party. It is presently engaged in political activities throughout Puerto Rico in preparation for general elections scheduled to take place on November 2, 1976.

The individual Plaintiffs are bona fide members of Plaintiff PNP and are actively participating in political activities of said party, including fund-raising activities sponsored by this party at its own initiative.

Defendant Rafael Hernándex Colón (hereinafter called "Governor Hernández Colón") is the Governor of the Commonwealth of Puerto Rico and the President of the Popular Democratic Party, which in the 1972 elections previously referred to, received approximately 51% of the votes cast and won a majority of the seats in both the Senate and House of Representatives of the Commonwealth of Puerto Rico. Defendant Carlos Ríos (hereinafter called "Secretary Ríos") is the Secretary of Justice of the Commonwealth of Puerto Rico. Defendants José Rodríguez Aponte, Osvaldo de la Luz Vélez and José Orlando Grau are the chief officers of an administrative agency established pursuant to the Electoral Code, referred to hereafter as the "Electoral Court", and are charged by said Code with the primary enforcement of the statute here in question.

PROPER PARTY DEFENDANTS

As a threshold matter, we must determine whether Governor Hernández Colón and Secretary Ríos are proper party Defendants.

Pursuant to the Constitution of the Commonwealth of Puerto Rico, "The Governor shall execute the laws and cause them to be executed." Art. IV, Sec. 4. Any violation of the Electoral Code (16 LPRA 2001 et seq.) constitutes a crime, which under 3 LPRA 72 requires that Secretary Ríos be the prosecutor. Additionally, Section 2009(c) of the Electoral Code (16 LPRA 2029(c)) requires the Electoral Court to request that the Secretary of Justice file whatever civil and criminal actions be deemed necessary to enforce said Code.

A state officer may be named as a party defendant provided such officer has some connection with the enforcement of the statute in question, which connection may be created by the statute itself or may arise out of the general law. Ex parte Young, 209 U.S. 123, 156-158, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Socialist Workers Party v. Rockefeller, 314 F.Supp. 984, 988 (D.C. S.D.N.Y.1970), aff'd, 400 U.S. 806, 91 S.Ct. 65, 27 L.Ed.2d 38 (1970).

It seems clear that both Governor Hernández Colón and Secretary Ríos meet this standard as party defendants.

THE CONSTITUTIONAL CHALLENGE

The issues raised by this case concern questions "not less than basic to a democratic society." United States v. United Auto Workers, 352 U.S. 567, 570, 77 S.Ct. 529, 530, 1 L.Ed.2d 563 (1957). The principal thrust of Plaintiffs' challenge lies in their contention that Act No. 24 constitutes an impermissible restraint on the right of free speech and association. A related attack is that this statute violates due process by reason of its vagueness.

In studying these questions a brief perusal of the history and setting within which the questioned provision is found may be of some use.

As previously indicated, Act No. 24 is only a recent addition to a larger framework which is commonly referred to as the Electoral Code of Puerto Rico, 16 LPRA 2001 et seq. The purpose of the Electoral Code is to regulate all aspects of the Commonwealth's electoral process by means of an integrated and comprehensive electoral system. The Legislature thus intended to create public confidence in this system and to this purpose, among others, it sought to control certain practices prevalent among the various political parties.

Generally, the Electoral Code contains provisions creating the Electoral Court and defining its functions (16 LPRA 2021, 2027); establishing a "Bill of Rights" for voters (16 LPRA 2131); specifying electoral crimes and their penalties (16 LPRA 2501 et seq.); and regulating the matters of elections (16 LPRA 2331 et seq.), primaries (16 LPRA 2251 et seq.), referendums and plebiscites (16 LPRA 2451 et seq.), and the registration of voters (16 LPRA 2181 et seq.).

More specifically as relates hereto, the Electoral Code contains a comprehensive scheme to regulate campaign finances (16 LPRA 2081 et seq.). Under this framework an electoral fund is created for the purpose of financing the administrative and campaign expenses of political parties and independent candidates (16 LPRA 2081). Other funds for general expenses (16 LPRA 2083), and voters' transportation (16 LPRA 2084), are available to be distributed on the basis of performance at the polls. Appropriate accounting procedures are established regarding moneys that are chargeable to the electoral fund (16 LPRA 2087). The statute also limits the amount that private citizens or entities may contribute to political parties or independent candidates (16 LPRA 2088). These amounts vary depending on whether it is an election or non-election year.

Respecting the present case, the core provisions are those dealing with the disclosure and reporting of private monetary contributions to political parties. These are contained in Article 3-009 of the Electoral Code (16 LPRA 2089), of which paragraph (B) includes the amendment to the Code presently under challenge.

Although the validity of Paragraph (A) of Article 3-009 is not here in question, we must refer to it to determine the issue at hand. That paragraph establishes that each political party and candidate is required, under oath, to inform the Electoral Court of the date, amount, name and address of every person contributing money to them. This report shall be made every three months, except that commencing on March 1 of each election year, this report must be filed every fifteen days.

As originally enacted in the Electoral Code of 1974, the predecessor to the present paragraph (B) reads as follows:

"(B) Whenever in any massive political activity including `mass meeting' any fund raising takes place, the collector or collectors shall, after the fund raising takes place, prepare a sworn statement, certifying the total amount of money collected and that none of the contributors exceeded the amounts established by this Code. This statement shall be filed in the Electoral Court within the following five (5) days."³

By virtue of Act No. 24 of 1975 (16 LPRA 2089), paragraph (B) was amended to read in the following manner:

"(B) Whenever in any massive political activity including mass meetings, marathons, concentrations, picnics, or similar activities, any fund raising takes place, the collector or collectors shall, after the fund raising takes place, prepare a sworn statement, stating the type of political activity held, an estimate of the number of attendants thereof, the amount raised, and that none of the donors gave an amount in excess of the amounts permitted by this Code. Said statement shall be filed at the Electoral Court within the following five (5) days. Whenever a political party is to celebrate a fund raising activity under the provisions of this paragraph, it shall, at least ten (10) days in advance of the celebration of said activity, notify the Electoral Court of its intention to effectuate such fund raising, the date and place thereof, so that the Electoral Court designate one or more representatives to supervise said fund raising. It shall be illegal for a political party to receive funds under this paragraph if it does not comply with the procedures set forth herein."⁴

The Electoral Code provides various criminal penalties...