Romany v. Colegio de Abogados de Puerto Rico, s. 83-1586

• Decision Date: 23 August 1984
• Docket Number: Nos. 83-1586,s. 83-1586
• Citation: 742 F.2d 32
• Parties: Jorge F. ROMANY, et al., Plaintiffs, Appellees, v. COLEGIO DE ABOGADOS DE PUERTO RICO, Defendant, Appellant. Oreste Ramos DIAZ, et al., Plaintiffs, Appellees, v. COLEGIO DE ABOGADOS DE PUERTO RICO, Defendant, Appellant. Jorge SOUSS, et al., Plaintiffs, Appellees, v. COLEGIO DE ABOGADOS DE PUERTO RICO, Defendant, Appellant. Robert E. SCHNEIDER, et al., Plaintiffs, Appellees, v. COLEGIO DE ABOGADOS DE PUERTO RICO, Defendant, Appellant. to 83-1589.
• Court: U.S. Court of Appeals — First Circuit

Page 32

742 F.2d 32

Jorge F. ROMANY, et al., Plaintiffs, Appellees, v. COLEGIO DE ABOGADOS DE PUERTO RICO, Defendant, Appellant.

Oreste Ramos DIAZ, et al., Plaintiffs, Appellees, v. COLEGIO DE ABOGADOS DE PUERTO RICO, Defendant, Appellant.

Jorge SOUSS, et al., Plaintiffs, Appellees, v. COLEGIO DE ABOGADOS DE PUERTO RICO, Defendant, Appellant.

Robert E. SCHNEIDER, et al., Plaintiffs, Appellees, v. COLEGIO DE ABOGADOS DE PUERTO RICO, Defendant, Appellant.

Nos. 83-1586 to 83-1589.

United States Court of Appeals First Circuit.

Argued Feb. 6, 1984.

Decided Aug. 23, 1984.

Laurence H. Tribe, Cambridge, Mass., with whom Kathleen Sullivan, Boston, Mass., and Susan Estrich, Cambridge, Mass., were on brief, for defendant, appellant.

Marvin S. Cohen, Washington, D.C., with whom John M. Gibbons, Stroock & Stroock & Lavan, Washington, D.C., Robert E. Schneider, Washington, D.C., and Hector L. Marquez, San Juan, P.R., were on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, WISDOM, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

This appeal from the United States District Court for the District of Puerto Rico brings before us for the second--and perhaps not the last--time a dispute over compelled membership in Puerto Rico's integrated bar. See In re the Justices of the Supreme Court of Puerto Rico, 695 F.2d 17 (1st Cir.1982). While we described many of the particulars in our earlier opinion, and while the facts were comprehensively stated by the district court, 565 F.Supp. beginning at 965, we restate them here with particular attention to events that have taken place in the Supreme Court of Puerto Rico as well as those in the federal court.

I.

The Commonwealth of Puerto Rico has an integrated bar association known as the Colegio de Abogados de Puerto Rico ("Colegio"). While the Colegio's antecedents date back to the days of Spanish rule, the present Colegio was created in May of 1932 by Act No. 43, P.R.Laws Ann. tit. 4, Sec. 771 et seq. The terms of that statute are not unlike statutes in force in 32 states of the union which likewise have integrated bars, i.e., associations to which all lawyers are compelled to belong. ¹

The Colegio's express statutory duties are to "cooperate in the improvement of the administration of justice," "defend the rights and immunities of lawyers," promote fraternal relations, and "maintain healthy and strict professional morals among the members." ² Membership in the Colegio is compulsory for all lawyers in Puerto Rico, and each member must pay the prescribed dues on pain of suspension from his right to practice. ³ Besides collecting dues, Puerto Rico law empowers the Colegio to issue forensic stamps which every Puerto Rico lawyer must affix to the initial document he files in any judicial proceeding, and to collect and use the proceeds from their sale. Puerto Rico law also authorizes the Colegio to issue and to receive proceeds from the sale of notarial and other required stamps.

The dispute which underlies the present appeal is a claim by plaintiff attorneys that their associational rights under the first and fifth or fourteenth amendments of the United States Constitution are violated by being compelled to belong to the Colegio. ⁴ Particularly outrageous, in their view, is the Colegio's practice of taking public positions on controversial issues far removed from the immediate concerns of lawyers as a class--for example, on the desirability of supporting the Sandinista Front for National Liberation in Nicaragua, of forcing the United States Navy to leave the island of Vieques, and of stopping the draft. Plaintiffs assert a constitutional right not to associate with, or pay dues and fees to a group that publicly identifies with views with which plaintiffs disagree and which they perceive as immaterial to any legitimate professional interest which the integrated bar may be formed to promote.

A. Proceedings before the Supreme Court of Puerto Rico

This dispute first surfaced in 1977 when the Colegio complained to the Supreme Court of Puerto Rico against 99 attorneys, including three of the five plaintiffs, for failure to pay prescribed membership dues to the Colegio. Most of the delinquents soon paid up, but two of those who later became plaintiffs below did not. These two attorneys, Robert F. Schneider, Jr., and Hector R. Ramos Diaz, raised affirmative defenses in the Supreme Court of Puerto Rico. Initially they pleaded both the Puerto Rico and United States Constitutions by way of defense, but subsequently they attempted to withhold and reserve their federal claims under purported analogy with England v. Louisiana Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).

On April 5, 1982, after argument and upon findings by a special master, the Supreme Court of Puerto Rico issued an opinion holding that the two lawyers had a duty to pay dues to the Colegio, and ordering them to do so. Colegio v. Schneider, 112 D.P.R. 540 (1982).

In upholding compulsory bar membership and compulsory financial support, the Supreme Court of Puerto Rico relied heavily upon federal constitutional precedents, including Lathrop v. Donahue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191, see note 1, supra, although it acknowledged that the litigants were pressing only claims under the Constitution and laws of Puerto Rico. The court also relied upon a distinctive tradition of compulsory bar associations in civil law jurisdictions and upon the socio-political circumstances of Puerto Rico.

Bar associations in civil law jurisdictions, it explained, have "from time immemorial" enjoyed both compulsory membership and a "primarily political role." In Spain and France their political involvement led, from time to time, to the termination of their privileges--including of compulsory membership--by "absolutist" regimes opposed to the "liberties they professed." Colegio v. Schneider, 112 D.P.R. 540, 550-51 (1982) (official translation). In Puerto Rico, the court stated, the bar association had enjoyed compulsory membership, from its establishment by Royal Decree in 1840,

until it was suppressed by General John R. Brooke during the United States military government on the Island. U.S. Department of War, General Orders and Circulars, 1898-1900, G.O. 20 of December 3, 1898. Instead of the Bar Association of Puerto Rico, it established a colorless entity, which was voluntary and which led a precarious life until the present Bar Association was created by Act No. 43 of May 14, 1932.

Id. at 544-45. That legislation, the court noted, revived one of Puerto Rico's "most ancient and respected institutions." Id. at 547.

"The singular socio-political circumstances of Puerto Rico" also buttress the constitutionality of Law No. 43. Id. at 549.

Institutions such as the Bar Association--the Legislature has extended the compulsory membership to many other groups--fulfill a very special mission in our society. Contrary to the strongly pluralistic character of North American society, our milieu has traditionally been monolithic, lacking the many independent voices that make such great contributions to the health of the democratic way of life.

Id. at 547. The establishment of a strong bar association, then, with compulsory membership, serves the "public interest in the creation of a strongly pluralistic society, in furtherance of the practice of law and [in] the good operation of the judicial system ...." Id. at 549. The bar association exists not merely "for the strict interest of a class [i.e., lawyers], but also for the good operation of justice in our country and the social advancement of the community." Id. at 547. These interests "outweigh[ ] the personal inconveniences that compulsory membership might entail." Id. at 549. Hence, even though Colegio enjoys compulsory membership, the court held, it has "ample freedom of speech under the provisions of art. II, Sec. 4 of the Constitution [of Puerto Rico]" and "need not be a quiet and blushing entity, afraid to use the voice granted it by the very pluralistic purpose it should serve ...." Id. at 551.

The court explained, however, that the Constitution of Puerto Rico also protects the Colegio's dissenting members as "the sense of the freedom of speech clause contained in Art. II, Sec. 4 of the Constitution of Puerto Rico is not narrower than that given by the United States Supreme Court to the First Amendment" in Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). Accordingly, while the Colegio is entitled to speak out boldly on ideological matters,

[L]awyers who dissent from such pronouncements--and not those who object to the Bar Association's performance of its statutory purposes or of those imposed by this Court--enjoy, under the Constitution of Puerto Rico, the right to raise objections to the use of their contributions or of part thereof for ideological activities they do disapprove. Such disapproval may be of a general nature, as it was expressed in [Railway Clerks] v. Allen, 373 U.S. 113 [83 S.Ct. 1158, 10 L.Ed.2d 235] [(1963) ] and in Abood.

112 D.P.R. at 554-55.

In the fifth and final part of its opinion, headed "The Remedy," the Supreme Court of Puerto Rico instructed the Colegio, not later than the date set for collecting its next annual dues, to devise a method for ascertaining that contributions ⁵ of a dissenting member shall not be used for ideological purposes. The court said the method "shall duly follow the principles laid down in [Machinists v.] Street, [367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961),] Allen and Abood." Other directions were included.

A month after issuing the above opinion, the Supreme Court of Puerto Rico issued a resolution dated May 6, 1982, retaining jurisdiction,

to take cognizance of any issue regarding the fifth and last part of our judgment of April 5, 1982, and also to approve, disapprove or finally modify the remedy that...