Surinach v. Pesquera De Busquets

• Decision Date: 25 July 1979
• Docket Number: No. 78-1527,78-1527
• Citation: 604 F.2d 73
• Parties: His Excellency Bishop Ricardo SURINACH, etc., et al., Plaintiffs, Appellants, v. Carmen T. PESQUERA de BUSQUETS, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 73

604 F.2d 73

His Excellency Bishop Ricardo SURINACH, etc., et al Plaintiffs, Appellants, v. Carmen T. PESQUERA de BUSQUETS, Defendant, Appellee.

No. 78-1527.

United States Court of Appeals First Circuit.

Argued April 2, 1979.

Decided July 25, 1979.

Jose Guillermo Vivas, Ponce, P. R., with whom Carlos Martinez-Texidor, and Vivas & Martinez-Texidor, Ponce, P. R., were on brief for appellants.

Reina Colon De Rodriguez, Asst. Sol. Gen., San Juan, P. R., with whom Hector A. Colon Cruz, Sol. Gen., San Juan, P. R., was on brief for appellee.

George E. Reed, Gen. Counsel, and Patrick F. Geary, Asst. Gen. Counsel, Washington, D. C., on brief for United States Catholic Conference, amicus curiae.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

This litigation was instituted by the President of the Inter-Diocesan Secretariat for Catholic Education of Puerto Rico and superintendents of Roman Catholic schools in a number of Puerto Rican dioceses to have declared unconstitutional actions taken by the Secretary of Consumer Affairs of Puerto Rico to investigate the operating costs of Roman Catholic schools in the Commonwealth. Plaintiffs also sought to have the Secretary permanently enjoined from "interfering, meddling, or entangling with or in the financial affairs of the Roman Catholic Apostolic Church."

In April of 1973 the Commonwealth of Puerto Rico established a Department of Consumer Affairs "to defend and implement the rights of the consumer, to restrain inflationary trends; as well as the establishment and inspection of a price control over the goods and services for use and consumption." Law Number 5 of April 23, 1973, as amended, Article 3, § 341b. The powers accorded the Secretary of the Department for the fulfillment of his duties are wide ranging; he may issue subpoenas to compel the appearance of witnesses and the production of documents and information, Article 6(h), inspect records, documents and physical facilities of entities subject to his regulation, Article 6(w), and resort to the courts to ensure compliance with his directives, Article 6(i). His scope of inquiry is equally untrammeled, for "(t)he Department is . . . empowered to carry out all kinds of studies and investigations on matters affecting the consumer, and to such purposes the Secretary may require the information which might be necessary, pertinent and essential to achieve such purposes." Article 14(a), (b), (c).

Pursuant to this mandate, the Department launched an investigation of the costs of private schools operating in Puerto Rico, an investigation which encompassed parochial schools under the aegis of the Roman Catholic Church. In July of 1978, plaintiffs were ordered by the Secretary to provide within ten days specified documents and books and to furnish such information as the school's annual budgets for the three previous years; the source of their finances (registrations, donations, governmental and others); costs of transportation; the student cost per academic grade for registration, admission dues, activities, medical insurance, nourishment services, materials and school uniforms; the salaries paid to teachers, administrative, maintenance and other personnel; book costs and invoices per grade and their resale prices as well as the names and addresses of book suppliers; and scholarships and the criteria upon which they were awarded. The plaintiffs refused compliance with the order and brought the instant suit, alleging that the Secretary's actions were in violation of the Religion Clauses of the First Amendment and constituted an impermissible entanglement of the affairs of church and state.

On the motion of the defendant, the district court dismissed the complaint. ¹ The court recognized that it was faced with the " 'sensitive and delicate task' of balancing governmental dictates of social policy against a religious claim for exemption from requirements of general applicability", but concluded that "the general investigation to which (the Catholic schools) are being subject does not penalize, hinder or otherwise curtail any religious practice of Plaintiffs." It further found that the amount of entanglement which this administrative scheme would engender, at least in the preliminary information gathering stages of the investigation, fell short of a constitutional transgression. ² Because we find that the First Amendment indeed is encroached upon by the Commonwealth's efforts to obtain the above information from the schools and that the Commonwealth has failed to shoulder its substantial burden of justifying that encroachment, we reverse the judgment below.

Our analysis of the issues presented by this case parts company with that of the district court from the outset. The court below placed great emphasis on the "preliminary nature of the administrative action challenged in this case":

"The record in this case is devoid of any substantial indicia of a realizable regulation of the internal financial affairs of the Catholic Schools. Furthermore, the Defendant has not palpably limited the tuition costs of the schools. We therefore are in no position to decide the validity of an actual governmental regulation in these areas. We simply hold that the Status quo fails to support a cause of action under the religious clauses of the First Amendment."

While it is true that the constitutionality of the entire regulatory scheme as applied to Catholic schools is not squarely before us, the court's bifurcation of the gathering of the information and the purpose for which it is sought strikes us as both artificial and constitutionally unsound. The Department of Consumer Affairs is empowered to "restrain inflationary trends" by "establish(ing)" and "inspect(ing)" a system of price control for goods and services in the Puerto Rican economy. And as counsel for the Secretary made clear at oral argument, the information in this case is sought pursuant to that broad directive. The gathering of information is not viewed as an end in itself. To the contrary, it is merely a first step by the Department; the records and information furnished by the schools will be examined and may be made public; both public hearings and the enactment of regulations may then take place, and if the Department ultimately determines that the costs of Catholic schools must be contained, ceilings can and will be imposed. ³ At least in this case we are dealing with the gathering of information in a context where we cannot conceive nor have we been apprised of any rational end product use of this information which will not encroach on appellants' First Amendment rights.

It is not the obligation of the schools to prove as a precondition for relief at this time that this precise scenario, which hardly can be called speculative, in fact will unfold. ⁴ To the contrary, in the sensitive area of First Amendment religious freedoms, the burden is upon the state to show that implementation of a regulatory scheme will Not ultimately infringe upon and entangle it in the affairs of a religion to an extent which the Constitution will not countenance. In cases of this nature, a court will often be called upon to act in a predictive posture; it may not step aside and await a course of events which promises to raise serious constitutional problems. In Catholic Bishop of Chicago v. NLRB, 559 F.2d 1112 (7th Cir. 1977), Aff'd on statutory grounds, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), the court of appeals held that the exercise of jurisdiction by the NLRB over schools operated by the Roman Catholic Church violated the separation between church and state. ⁵ Reasoning from the cases which have found various forms of aid to sectarian schools to be unconstitutional, it expressly rejected the Board's contention that any constitutional problems should be litigated "down the line" if and when disputes arose between the Board and schools subject to its jurisdiction:

"The whole tenor of the Religion Clauses cases involving state aid to schools is that there does not have to be an actual trial run to determine whether the aid can be segregated, received and retained as to secular activities only, but it is sufficient to strike the aid down that a reasonable likelihood or possibility of entanglement exists." 559 F.2d at 1126.

See Lemon v. Kurtzman, 403 U.S. 602, 621, 91 S.Ct. 2105, 2115, 29 L.Ed.2d 745 (1971) ("The government cash grants before us now provide no basis for predicting that comprehensive measures of surveillance and controls will not follow."); Walz v. Tax Commission, 397 U.S. 667, 674, 90 S.Ct. 1409, 1414, 25 L.Ed.2d 697 (1970) ("Elimination of the exemption would tend to expand the involvement of government by giving rise to tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes."). Accordingly we believe that the constitutional perils of the compelled disclosure of cost information must be assessed and the Commonwealth's interest in that disclosure justified in view of the purpose for which the information was solicited.

The schools in question are an integral part of the Catholic Church and as such "involve substantial religious activity and purpose." Lemon v. Kurtzman, supra, 403 U.S. at 616, 91 S.Ct. at 2113. Cognizant of the fact that the course of neutrality charted by the Constitution toward religion cannot follow "an absolutely straight line", Walz v. Tax Commission, supra, 397 U.S. at 669, 90 S.Ct. 1409; See Lemon v. Kurtzman, supra, 403 U.S. at 614, 91 S.Ct. 2105; Zorach v. Clauson, 343 U.S. 306, 312-13, 72 S.Ct. 679, 96 L.Ed. 954 (1952), our task here is to determine whether the "particular acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so." Walz v. Tax Commission,supra, 397 U.S. at 669, 90 S.Ct. at 1412; See Sherbert v....