Perez-Guzman v. Gracia

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation346 F.3d 229
Docket NumberNo. 03-1622.,No. 03-1621.,03-1621.,03-1622.
PartiesJosé Emilio PÉREZ-GUZMÁN, Plaintiff, Appellee, v. Aurelio GRACIA, etc., et al., Defendants, Appellants. Commonwealth of Puerto Rico, Intervenor, Appellant.
Decision Date09 October 2003

Gerardo de Jesus Annoni, with whom Sanchez-Betances & Sifre, P.S.C., and Ramón Walker Merino were on consolidated brief, for appellants.

Nelson Rosario Rodríguez for appellee.

Before SELYA, Circuit Judge, STAPLETON,* Senior Circuit Judge, and HOWARD, Circuit Judge.

SELYA, Circuit Judge.

In Puerto Rico, organizations that seek to be recognized as political parties must gather roughly 100,000 endorsing petitions, each signed by a registered voter and sworn to before a notary public. Since only a lawyer can become a notary in Puerto Rico, there are fewer than 8,000 notaries in the entire commonwealth — and notarial services do not come cheap. Chafing under these restrictions, a nascent political party — the Partido Acción Civil (the Party) — challenged various aspects of the law, including the lawyer-notarization requirement, in the local courts. The Party lost.

Plaintiff-appellee José Emilio Pérez-Guzmán (Pérez), a member of the Party who had not participated in the earlier suit, remained dissatisfied with the lawyer-notarization requirement. He sued the members of the Puerto Rico State Elections Commission (the Commission) in the federal district court. The district court rejected a proffered res judicata defense and found that the lawyer-notarization requirement violated the plaintiff's First Amendment rights. Pérez-Guzmán v. Gracia, 260 F.Supp.2d 389 (D.P.R.2003). The Commission and the Commonwealth (which had intervened in the proceedings below) appeal from this ruling.

The questions raised by these appeals are novel and important. The res judicata issue involves the extent to which a judgment against an association can preclude a later action by a member of that association. The constitutional issue pits the government's interest in regulating elections against an individual's interests in electoral participation and freedom of association. Having worked our way through both issues, we conclude, as did the district court, that the instant action is not pretermitted by the prior judgment and that the lawyer-notarization requirement unduly burdens First Amendment rights. Consequently, we affirm the judgment below.


The Party is an unincorporated association seeking to be registered by petition as a political party, and Pérez is among its members. Under commonwealth law, a "Party by Petition"

— Shall be any group of citizens who, desiring to appear on the electoral ballot of a general election, shall register as a political party, on or before June 1 of the election year, by filing with the Commission sworn petitions to such effect, before notary publics duly admitted to the practice of notary, pursuant to the provisions of the Notary Act in effect, who shall collect from the Electoral Commission a fee of one (1) dollar for each valid, notarized petition signed by a number of electors of no less than five (5) percent of the total votes cast for all candidates for the office of Governor in the preceding general election.

P.R. Laws Ann. tit. 16, § 3101(3) (2000). Because more than 2,000,000 votes were cast in the 2000 gubernatorial election, a group that currently desires to register a political party must amass in excess of 100,000 notarized petitions. Each petition must be signed and sworn to before a notary public and filed with the Commission within seven days after notarization. Id. § 3102.

There is nothing wrong with a state demanding that a would-be political party demonstrate a "significant modicum of support" before gaining access to the ballot,1 Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971), and, thus, petitioning requirements are commonplace in such situations. But Puerto Rico's obviously burdensome rule — a rule that requires each signature to be separately notarized — is quite uncommon. See, e.g., Am. Party of Tex. v. White, 415 U.S. 767, 775 n. 6, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974) (noting that, under Texas law, a single notarial certificate "may be so made as to apply to all [signatories] to whom [the oath] was administered"); Ga.Code Ann. § 21-2-170(d) (Supp.2002) (providing that each sheet of a nominating petition must bear the circulator's affidavit pertaining to the voter signatures reflected thereon). Puerto Rico's rule that only attorneys can serve as notaries, P.R. Laws Ann. tit. 4, § 2011 (2000), is also rare. The combination of the two rules is, insofar as we can tell, unique.

Given this peculiar collocation of circumstances, it is not surprising that controversy has surrounded Puerto Rico's notarization requirement. We reviewed the procedural history of the Party's challenge to it in an earlier opinion, see Cruz v. Melecio, 204 F.3d 14, 17-18 (1st Cir.2000), and we briefly rehearse that history in order to put the appellants' res judicata defense into perspective.

On October 6, 1998, the Party filed an action in the Puerto Rico Court of First Instance against the Commission and others. Its complaint averred, inter alia, that the lawyer-notarization requirement transgressed the Constitution. The court granted summary judgment in favor of the defendants; the Puerto Rico Circuit Court of Appeals upheld the judgment; the Puerto Rico Supreme Court also affirmed, see Civil Action Party v. Commonwealth, 2000 TSPR 29, 2000 WL 223543 (P.R. Feb.25, 2000) (CAP I), reconsideration denied per curiam, 2000 TSPR 61, 2000 WL 462276 (P.R. Apr.25, 2000) (CAP II); and the United States Supreme Court denied certiorari, 531 U.S. 920, 121 S.Ct. 283, 148 L.Ed.2d 204 (2000).

Just two days before the intermediate appellate court ruled, fourteen Party members filed an action for declaratory and injunctive relief in Puerto Rico's federal district court. The action raised essentially the same federal constitutional claims, including the claim that the lawyer-notarization requirement violated the plaintiffs' rights to free speech and association, to participate in the political process, to vote, and to enjoy equal protection of the laws. Cruz, 204 F.3d at 17. The district court dismissed the action on the merits.

An appeal ensued. In it, we first addressed the potential applicability of res judicata. We held that the defense did not apply because the commonwealth court proceedings were, at that point, still in progress. Id. at 20-21. We then determined that the district court had erred in dismissing the action for failure to state a potentially viable claim. Id. at 22. The complaint had alleged facts which, if true, "tend[ed] to support the appellants' claims that the notarization requirement and seven-day [filing] deadline unduly burden ballot access." Id. Thus:

If ... the appellants can prove that notarization is prohibitively expensive or otherwise difficult to achieve (as the complaint avers), then the Commission will have to show that the notarization requirement is narrowly drawn to advance a compelling governmental interest. This showing requires the Commission to come forward with proof. Whether it ultimately can succeed in this endeavor is a sufficiently open question that we cannot conclude, on the pleadings, that no set of facts exists under which the appellants might prevail.

Id. (footnote and internal citation omitted). Accordingly, we vacated the order of dismissal.

Still, we did not allow the case to proceed unabated, but, rather, instructed the district court to stay further proceedings pending the Puerto Rico Supreme Court's decision. Id. at 25. Among the factors we found "highly relevant to the calculus of abstention" was our belief that "the appellants [had] filed the present suit in an effort to detour around an unfavorable judgment of the commonwealth trial court." Id. at 24. After the Puerto Rico Supreme Court affirmed the judgment against the Party and the United States Supreme Court denied certiorari, the district court dismissed Cruz on res judicata grounds. The Cruz plaintiffs did not appeal, and that appeared to be the end of the matter.

Appearances can be deceiving. The next year, Pérez filed this action challenging the lawyer-notarization requirement (but not the seven-day filing requirement). In relevant part, the complaint sought a declaration that the lawyer-notarization requirement, P.R. Laws Ann. tit. 16, § 3101(3), violated Pérez's rights to freedom of speech and equal protection. It also prayed for an injunction prohibiting the defendants from enforcing section 3101(3) and the corresponding regulations.

After an evidentiary hearing, the district court entered an order "declaring the requirement... that petitions for new political parties be notarized by a lawyer to be in violation of the First Amendment of the Constitution." Pérez-Guzmán, 260 F.Supp.2d at 394. The court's determination rested in large part on the idiosyncratic nature of Puerto Rico's lawyer-notarization requirement. In that regard, the court made three critical findings. First, it found as a fact that the cost of notarizing 100,000 petitions would be at least $1,500,000. Given this substantial outlay, the lawyer-notarization requirement imposed a severe financial burden upon a citizen's "right to associate and to form political organizations which advance common goals and ideals." Id. at 392 (footnote omitted). Second, the court found that the appellants had failed to show that the lawyer-notarization requirement was narrowly tailored to advance a compelling governmental interest. Id. at 393. In making this point, the court emphasized that in other electoral contexts the Commission had authorized ordinary voters to verify signatures despite the fact that they were not notaries, but had refused to sanction any comparable arrangement for witnessing party...

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