Sindicato Puertorriqueno de Trabajadores, SEIU Local 1996 et al v. Fortuno-Burset et al
Filing
88
OPINION AND ORDER denying 10 Motion for Preliminary Injunction; denying 20 Supplemental Motion. Signed by Judge Juan M Perez-Gimenez on 9/27/2012. (VCC) Modified on 9/27/2012 to edit text (xi).
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
SINDICATO PUERTORRIQUEÑO DE
TRABAJADORES, ET. AL.,
Plaintiffs,
CIVIL NO. 12-1531 (PG)
v.
LUIS FORTUÑO BURSET, ET. AL.,
Defendants.
OPINION & ORDER
The Plaintiffs Sindicato Puertorriqueño de Trabajadores, SEIU Local
1996 (“SPT”), Unión General de Trabajadores de Puerto Rico, SEIU Local 1199
(“UGT”), Service Employees International Union (“SEIU”) and Alianza SEIU de
Puerto Rico, Inc. (“Alianza”) (hereinafter collectively referred to as
“Plaintiffs”) brought this action pursuant to 42 U.S.C. § 1983 (“Section
1983”) against defendants Luis Fortuño in his official capacity as Governor
of the Commonwealth of Puerto Rico, the Public Service Appeals Commission
(“PSAC”), Laudelino F. Mulero Clas in his official capacity as the President
of PSAC, the Office of the Election Comptroller and Manuel A. Torres Nieves
in his official capacity as the Election Comptroller (hereinafter collectively
referred to as “Defendants”). See Docket No. 5.
The Plaintiffs seek injunctive and declaratory relief because they
allege that Section 4.7(c)(4) of the Puerto Rico Public Service Labor
Relations Act, Law No. 45 of February 25, 1998, as amended by Law No. 96 of
August 7, 2001 (hereinafter “Law 45”), and Sections 6.007 through 6.010 of
the Puerto Rico Political Campaign Financing Oversight Act, Law No. 222 of
November
18,
2011
(hereinafter
“Law
222”)
are
unconstitutional.
The
Plaintiffs commenced this action on July 1, 2012, that is, approximately
thirteen years after the enactment of Law 45 and seven and a half months
after the passage of Law 222.
According to the Plaintiffs, the statutes in question violate the
First Amendment and the Due Process Clause of the Fourteenth Amendment to
the United States Constitution “by unduly restricting the First Amendment
Civ. No. 12-1531 (PG)
Page 2
rights of labor organizations to engage in political activity, and by failing
to provide fair notice of the conduct that is prohibited.” See Docket No. 5
at ¶ 1.
Specifically, Plaintiffs wish to make independent
expenditures to
“further the policies set out” in a document called “Propuestas para un Mejor
País” (Proposals for a Better Country).1 The document describes SPT and UGT’s
proposals to improve the lives of their members and their families as well as
the welfare of Puerto Rico through the topics of education, health and
welfare,
labor
rights,
sustainable
development,
democracy
and
citizen
participation, and human rights. See, Diaz Decl., Docket No. 10-2 at ¶9;
Caraballo Decl., Docket No. 10-3 at ¶9. The document was adopted during an
assembly called by Alianza on November 19, 2011 by vote of the delegates of
the Council of Delegates of UGT and the General Assembly of Delegates of SPT.
In their complaint, Plaintiffs allege that, although they do not
currently make contributions and/or expenditures in support of candidates
running for local office in Puerto Rico, they “intend, both directly and
through political action committees, to make independent expenditures … and
to
make
contributions
to
other
entities
that
make
such
independent
expenditures, in support of the election of candidates for local office in
Puerto Rico, … .” See Docket No. 5 at ¶¶ 15, 17. “Plaintiffs also intend to
engage in activities in support of or opposition to certain referenda that
will be submitted to voters.”2 See Docket No. 5 at ¶ 17.
The Plaintiffs complain, however, that Section 4.7(c) of Law 45 prohibits
the type of contributions they intend to make with the funds of the labor
organizations appearing herein in violation of the Supreme Court’s ruling in
Citizens United v. Federal Election Commission, 130 S.Ct. 876(2010).3
1
Despite the fact that Plaintiffs have made repeated references to
this document in their briefs before the Court, they have not provided a
copy of the same duly translated to the English language for the Court’s
review.
2
Inasmuch as the referenda in question was held on August 19, 2012,
the Plaintiffs’ claims in connection therewith are moot.
3
In Citizens United, plaintiff Citizens United, a nonprofit
corporation, brought action against Federal Election Commission (FEC)
seeking declaratory and injunctive relief, asserting that it feared it
could be subject to civil and criminal penalties for violating § 203 of
the Bipartisan Campaign Reform Act of 2002 (BCRA), 2 U.S.C. § 441b
(Section 441b), if it made a film critical of then-Senator Hillary
Clinton, a candidate for her party’s Presidential nomination, available
through video-on-demand within 30 days of the primary elections. In
Civ. No. 12-1531 (PG)
Page 3
The aforementioned statute provides, in relevant part, that the Public
Service Labor Relations Commission (“the Commission”) shall decertify a labor
organization as an exclusive representative should it incur any of the
following:
(4) Contribute directly or indirectly with funds or
property of a labor organization to the election or
rejection of a political party or a candidate to public
elective office. Funds or property, or resources of an
exclusive representative shall not be used to support
or reject institutions, political parties or candidates
that support or defend options or positions in any
electoral
event.
Referendums
called
regarding
constitutional amendments that have a direct effect on
those labor rights consecrated in the Bill of Rights of
the Constitution of Puerto Rico, are excluded from this
prohibition.
P.R. STAT. ANN. tit. 3, § 1451i(c)(4). The statute provides for substantial
fines at the discretion of the Commission “after it has held an administrative
hearing in which the labor organization is given the opportunity to contest
the facts and introduce evidence in its favor.” Id.
In their opposition, the Defendants assert in regard to the Plaintiffs’
claims pertaining to Law 45 that their concern with Section 4.7(c)(4) of Law
45 is unwarranted inasmuch as it is the Defendants’ position that Section
4.7(c)(4) of Law 45 “was overridden by … Law No. 222 and labor unions are
allowed to use their own funds to make independent contributions in favor of
candidates, political parties and ideologies so long as such contributions are
not coordinated, as defined in Law No. 222.” See Docket No. 48 at page 16. To
the extent, then, that the statute in question, namely, Section 4.7(c)(4) of
Law 45 was rescinded by Law 222, there is thus no case or controversy
regarding the constitutionality of this statute.
Now, the Plaintiffs also seek that the Defendants be enjoined from
implementing Sections 6.007 through 6.010 of Law 222, and that the statute be
declared unconstitutional as applied to the Plaintiffs because it violates
their rights under the First and Fourteenth Amendments. According to the
Plaintiffs, these sections of the law place unconstitutional restrictions on
the unions’ First Amendment rights to engage in electoral speech and spending.
In addition, the Plaintiffs assert that Law 222 subjects them, as well as
relevant part, the Supreme Court held that the government may not, under
the First Amendment, suppress political speech on the basis of the
speaker’s corporate identity,
and that Section 441b, which barred
independent corporate expenditures for electioneering communications,
violated the First Amendment. See Citizens United, 130 S.Ct. at 913.
Civ. No. 12-1531 (PG)
Page 4
their officers and representatives, to fines and, potentially, criminal
prosecution
without
providing
a
fair
warning
of
the
conduct
that
is
prohibited. See Docket No. 1 at ¶ 48. It is the Plaintiffs’ contention that
“[k]ey provisions of the Law … are so vague that reasonable persons, including
Plaintiffs, cannot know what they must do to be in compliance with these
provisions.” Id.
Section 6.007 of Law No. 222 provides:
No juridical person shall make contributions out its
own resources in or outside Puerto Rico to any
political
party,
aspirant,
candidate,
campaign
committee, or to any authorized agent, representative,
or committee thereof, or to political action committees
that make contributions or coordinate expenditures
among them. However, it may establish, organize, and
administer a committee, to be known as a segregated
committee or fund that, for the purposes of
contributions and expenditures, shall be treated as a
public action committee that must be registered in the
Office of the Election Comptroller, render reports, and
comply with all requirements imposed under this Act.
Thus, its members, employees, and their immediate
family or related persons may make contributions that
shall be deposited in the account established and
registered in the Office of the Election Comptroller.
In order for a juridical person to be able to establish
a segregated committee or fund for these purposes, it
must comply with the limitations and requirements set
forth in Section 6.010 of this Chapter. The committee,
organization, or citizen group may make donations from
said
account
to
political
parties,
aspirants,
candidates, and campaign committees and authorized
committees, as well as to political action committees
making contributions to any of them.
P.R. STAT. ANN. tit. 16, § 625g. Section 6.009 of Law 222, titled “Independent
Expenditures,” states as follows:
Nothing in this Act shall limit contributions of money
or anything of value made for election-related purposes
to natural persons, juridical persons, or political
action committees that do not contribute or incur
coordinated expenditures with political parties,
aspirants,
candidates,
campaign
committees,
or
authorized committees, or with any authorized agent and
representative thereof. However, in these cases, the
provisions of Section 6.001 of this Act shall apply. To
make contributions or incur in this type of
expenditures, a juridical person must obtain the
authorization of the majority vote of its members, as
provided in Section 6.010 of this Act.
P.R. STAT. ANN. tit. 16, § 625i. Section 6.010 of Law 222 provides, in relevant
part, that to obtain the authorization mentioned in Sections 6.007 and 6.009
Civ. No. 12-1531 (PG)
Page 5
of Law 222:
1. The juridical person must hold a membership meeting.
The call for such meeting shall be issued fifteen (15)
days before the holding thereof and shall only include
this authorization purpose.
2. At the meeting, the majority plus one of the total
members of the entity, whether a corporation,
cooperative, partnership, association, or labor
organization, shall approve by direct and secret vote
the use of the money or property of the entity for
election-related purposes. Under no circumstances shall
a vote that has not been cast be counted as a vote in
favor of the use of money or the property for
election-related purposes.
3. For such authorization, the members shall be
informed of the purposes of the electioneering
communication or communications that shall be paid for,
including the specific purpose of the messages to be
transmitted and the amount of money that shall be
earmarked to such campaign. Before voting at the
meeting, the members shall be clearly informed of
whether they, as an organization, intend to support,
oppose, or advocate for the election or defeat or a
political party, ideology, aspirant, or candidate. No
organizational structures shall be created to evade the
requirement of obtaining the informed consent of the
members of any juridical person.
P.R. STAT. ANN. tit. 16, § 625j.
I. PROCEDURAL BACKGROUND
As stated in the foregoing section, the Plaintiffs commenced this
action on July 1, 2012, that is, approximately thirteen years after the
enactment of Law 45 and seven and a half months after the passage of Law
222.
On
July
17,
2012,
Plaintiffs
filed
a
Request
for
Preliminary
Injunction seeking to enjoin Defendants from implementing the challenged
statutory provisions as applied to the Plaintiffs in the current election
cycle. See Docket No. 10. On July 24, 2012, the Plaintiffs filed a
Supplemental Memorandum in Support of Motion for Preliminary Injunction. See
Docket No. 20.
On September 7, 2012, the Court certified certain questions of law to
the Supreme Court of Puerto Rico. See Docket No. 56. The Plaintiffs sought
appellate review of the Certification as an effective denial of their
motion for preliminary injunction. See Docket No. 60.
By judgment entered on September 17, 2012, the First Circuit vacated
Civ. No. 12-1531 (PG)
Page 6
the Court’s certification and ordered the Court to promptly rule on
Plaintiffs’ motion for preliminary injunctive relief. Accordingly, the
Court set a Preliminary Injunction hearing on even date. See Docket No. 64.
On September 19, 2012, Defendants filed a Motion to Set Aside Hearing.
See Docket No. 70. The Court granted the Motion and vacated the hearing set
for September 20, 2012. See Docket No. 71.
Thereafter, the Plaintiffs filed a Motion for Reconsideration of the
decision to vacate the hearing. See Docket No. 72. The Court granted the
Motion for Reconsideration and set an evidentiary hearing for September 25,
2012 at 1:30 p.m. See Docket No. 75.
II. PRELIMINARY INJUNCTION STANDARD
“A preliminary injunction is an extraordinary and drastic remedy, one
that should not be granted unless the movant, by a clear showing, carries
the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
(citing WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE, CIVIL 2d § 2948)
(emphasis ours).
rests
within
The determination of whether this burden has been met
the
realm
of
the
court’s
discretion.
See
Deckert
v.
Independence Shares Corp., 311 U.S. 282, 290 (1940); Anheuser-Busch, Inc.
v. Teamsters Local No. 633, Nat. Conference of Brewery & Soft Drink
Workers, 511 F.2d 1097, 1099 (1st Cir.1975) (citations omitted), cert.
denied, 423 U.S. 875 (1975).
The standard for issuing a preliminary injunction is oft-quoted a four
factor test: (1) the likelihood of success on the merits; (2) the potential
for irreparable injury; (3) a balancing of the relevant equities most
importantly,
the
hardship
to
the
nonmovant
if
the
relief
issues
as
contrasted with the hardship to the movant if relief is withheld; (4) the
effect on the public interest of a grant or denial of the relief.
See New
Comm. Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 8-9 (1st
Cir.2002); Ross-Simons of Wardwick, Inc. V. Baccarat, Inc., 102 F.3d 12, 15
(1st Cir.1996); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st
Cir.1991). “Of these four factors, the probability-of-success component
[is] … critical in determining the propriety of injunctive relief.” Lancor
v.
Lebanon
Housing
Authority,
760
F.2d
361,
362
(1st Cir.1985).
The
overseeing appellate court has called the likelihood of success factor the
“sine
qua
non”
of
the
preliminary
injunction
test.
See
Weaver
v.
Henderson, 984 F.2d 11, 12 (1st Cir.1993); see also SEC v. Fife, 311 F.3d
1, 8 (1st Cir.2002).
In addition, the potential for irreparable injury criteria “must not
Civ. No. 12-1531 (PG)
Page 7
be assumed, it must be demonstrated … speculation injury does not constitute
a showing of irreparable harm.”
Narragansett Indian Tribe v. Guilbert, 934
F.2d at 6-7 (internal citations omitted). The comparable hardship factor
requires the court to examine, and perform a comparison between the injuries
suffered by plaintiff outweighing any harm which granting injunctive relief
would inflict on the defendant. See DeNovellis v. Shalala, 135 F.3d 58, 77
(1st Cir.1998); Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009
(1st Cir.1981).
The final and fourth criterion, namely, the effect on the
public interest, is measured by whether the public interest would be better
served by issuing than by denying the injunction. See Massachusetts Coalition
of Citizens with Disabilities, et al., v. Civil Defense Agency and Office
Emergency Preparedness, 649 F.2d 71, 74 (1st Cir. 1981.)
III. ANALYSIS OF PRELIMINARY INJUNCTION FACTORS
A. Likelihood of Success on the Merits
The Plaintiffs must first show a substantial likelihood they will prevail
on the merits. That is, Plaintiffs must demonstrate a substantial likelihood
that the challenged provisions are unconstitutional.
It is the Plaintiffs’ contention that the challenged provisions are
subject to strict scrutiny because they constitute a restraint on their right
to engage in political speech. See Docket No. 10-1 at page 10.
Generally speaking, “[l]aws that burden political speech are subject to
strict scrutiny, which requires the Government to prove that the restriction
furthers a compelling interest and is narrowly tailored to achieve that
interest.” Citizens United v. Federal Election Comm’n, 130 S.Ct. 876, 898, 175
L.Ed.2d 753 (2010). However, the Supreme Court has distinguished laws that
simply require disclosure of information by those engaging in political
speech. Doe v. Reed, 130 S. Ct. 2811, 177 L.Ed.2d 493 (2010.) In Citizens
United, the Court made clear that “Disclaimer and disclosure requirements may
burden the ability to speak, but they ‘impose no ceiling on campaign related
activities’, and do not ‘prevent anyone from speaking.’” Citizens United, 130
S.Ct. at page 885 (citing Buckley, 424 U.S. at page 64; McConnell v. FEC, 540
U.S. 93, 201, 124 S.Ct.619, 157 L.Ed.2d 491(2003.))
As such, challenges to disclosure requirements in the electoral context
are subjected to what the Court has termed “exacting scrutiny.” Exacting
scrutiny,
a less stringent standard than strict scrutiny, “requires a
‘substantial relation’ between the disclosure requirement and a ‘sufficiently
important’ governmental interest.” Citizens United, 130 S.Ct. at 914, (citing
Civ. No. 12-1531 (PG)
Page 8
Buckley v. Valeo, 424 U.S. 1, 64, 66, 96 S.Ct. 612. 46 L.Ed.2d 659 (1976.))
The Plaintiffs contend that the provisions of Law 222 that are at the
heart of this case “have nothing to do with preventing corruption or the
appearance of corruption,”
which is necessary to satisfy the exacting
scrutiny. See Docket No. 10-1 at page 10. In making such an assertion, the
Plaintiffs overlook the Statement of Motives of Law 222, that specifically
provides, in pertinent part, as follows:
Citizens are particularly interested in knowing who
makes contributions to political campaigns, and the
State has a compelling interest in ensuring that
freedom of expression shall be properly recognized,
respected, channeled, and protected. Thus, this shall
enable us to better identify and prevent corrupt and
unlawful actions, which at times have beleaguered our
election system, and to make informed decisions for the
benefit of present and future generations. This
legislation shall impart the transparency on the voting
system of Puerto Rico that it demands. It is necessary
for the voting system of Puerto Rico to be equipped
with the appropriate guidelines and requirements to
ensure that the People know who provides funding for
campaign activities and advertisements that deliver
statements intended to sway their opinion.
The Plaintiffs challenge several statutory provisions of Law 45 and Law
222
that
apply
to
alleged
restrictions
on
independent
expenditures,
contributions and disclosure and disclaimer requirements. Each provision must
be
examined
independently
and
that
analysis
necessarily
commands
a
determination on the appropriate scrutiny. To conclude, as the Plaintiffs do,
that strict scrutiny applies to each and every statutory provision challenged
in this case is premature.
At this stage of the proceedings and with an incomplete record, the
Court is not in a position to assess the complex issues raised by the
challenges Plaintiffs pose to Puerto Rico’s electoral laws. In order to engage
in the in-depth analysis required to determine whether the Plaintiffs are
likely to succeed on the merits, the Court must have before it a full record.
Because the remaining three factors for issuance of a preliminary injunction
weigh
in
favor
of
denying
Plaintiffs’
request
at
this
stage
of
the
proceedings, the Court will refrain from entertaining a discussion on the
Plaintiffs’ likelihood of success on the merits.
B. Irreparable Injury
Civ. No. 12-1531 (PG)
Page 9
The Plaintiffs’ claims of irreparable injury rest solely on the loss of
their First Amendment rights to participate in activities and make independent
expenditures in connection with the upcoming November elections.
However, “[T]he fact that Plaintiffs are asserting First Amendments
rights does not automatically require a finding of irreparable injury.” Pub.
Serv. Co. of New Hampshire v. Town of West Newbury, 835 F.2d 380, 3 82 (1st
Cir.1987) (quoting Rushia v. Town of Ashburnham, 701 F.2d 7, 10 (1st Cir. 1983)
(internal quotations omitted); Respect Me. PAC v. McKee, 622 F.3d 13, 15 (1st
Cir. 2010.)
Plaintiffs argue that Rushia is distinguishable from the case at hand
because their claim of irreparable harm is not a “naked assertion,” and point
to Cirelli v. Town of Johnston Sch. Dist., 888 F.Supp. 13, 16 (D.R.I. 1995) and
Hohe v. Casey, 868 F.2d 69, 72-73 (3rd Cir. 1989) for the proposition that a
plaintiff must show “a chilling effect on free expression.” See Docket No. 50-1
at page 10.
In Cirelli, the First Circuit ruled that the Plaintiff had fulfilled the
irreparable injury requirement by showing that her First Amendment rights “have
very likely been violated.” Cirelli, 888 F.Supp. at 16. In reaching such a
determination, the District Court relied on case law from the Supreme Court and
the First Circuit supporting plaintiffs’ intention to comment on existing
conditions of a high school that violated the Rhode Island Health and Safety
Code, and noted:
I am hard pressed to imagine what function of the school
would be impaired by public exposure of the existing
safety violations at the school, where the function of
the school presumably includes the commitment to provide
a safe environment.
Id.
Unlike the Cirelli plaintiff, the Plaintiffs in this case have not made
such a clear showing of immediate injury that warrants issuance of a
preliminary injunction. This determination does not represent an adjudication
of the merits of the Plaintiffs’ First Amendment claims, but responds to the
evidence that the Plaintiffs have placed before the Court up to this point in
the proceedings in order to obtain injunctive relief.
The Plaintiffs have not presented this Court with evidence of “specific
plans to make expenditures” to support candidates or political parties or
ideologies in furtherance of the Propuestas. See Respect Maine Pac, 622 F.3d
at page 16 (Plaintiff “has shown no immediate injury, as it has not produced
evidence that it has spent any sums nor has it alleged specific plans to make
expenditures likely to trigger matching funds.”) In fact, the Plaintiffs have
Civ. No. 12-1531 (PG)
Page 10
not provided the Court with a copy of the Propuestas, despite relying on such
document as the basis for their intention to make independent expenditures.
See Diaz Decl., Docket No. 10-2 at ¶10 and Caraballo Decl., Docket No. 10-3
at ¶10. The Plaintiffs even failed to identify which candidate’s platform
would support their goals as labor organizations or how the Propuestas would
be best served by engaging in independent expenditures and contributions.4 It
was the Plaintiffs’ burden to produce such evidence and they had ample
opportunity
to
do
so
at
the
September
25,
2012
evidentiary
hearing.
Nonetheless, they failed to meet their burden.
In the context of an ongoing election, Courts have found that the
“extraordinary balance of the harms” requires a finding that plaintiffs are
not entitled to a preliminary injunction despite showing a “very strong
likelihood of success on the merits.” McComish v. Brewer, 2008 WL 4629337
(D.Ariz. Oct. 17, 2008.)
The Plaintiffs’ affirmations of immediate injury are further undermined
by their unwarranted delay in filing this action. It is undisputable that the
Plaintiffs waited until the eleventh hour to seek remedy against two statutes
that had been enacted long before this lawsuit was filed. Moreover, according
to the Plaintiffs’ own admissions, at the November 19, 2011 assembly called
by Alianza, SPT’s General Assembly of Delegates and UGT’s Council of Delegates
deliberated and voted to adopt the Propuestas. See Diaz Decl., Docket No. 10-2
at ¶¶ 9-13, 16, Caraballo Decl., Docket 10-3 at ¶ 17. During the September 25
hearing, Roberto Pagán Rodríguez, President of the SPT and Vice-President of
SEIU, acknowledged that the Propuestas had been in discussion for at least a
decade.
Pursuant
to
the
Declaration
of
Bienvenido
Caraballo,
Secretary
Treasurer of UGT, in February of 2012, the Board of Directors of UGT “voted
to conduct a public campaign with regard to the August referendum and the
November general elections, and as part of that campaign to make polical
expenditures in a total specified amount.” See Caraballo Decl., Docket 10-3
at ¶ 13. On March 30, 2012, UGT’s Council of Delegates “ratified the need to
engage in such public campaign and to make political contributions and
expenditures” in support of those candidates for the November general
4
In contrast, the Plaintiffs in Citizen United, had already released
the documentary that was the subject of the controversy and had even made
specific plans to make it available on cable television by producing
television ads for the documentary. Citizens United, 130 S.Ct. at page 881.
Civ. No. 12-1531 (PG)
Page 11
elections who endorse the Propuestas. See Caraballo Decl., Docket No. 10-3 at
¶ 13. Furthermore, SPT’s Consultative Board approved a Resolution on June 15,
2012, expressing that had it not been for Law Nos. 45 and 222, they would have
conducted public campaigns for candidates who support the Propuestas. See Diaz
Decl., Docket No. 10-2, at ¶ 13.
However, despite having discussed and ratified their intention to
actively participate in political activities to advance their Propuestas,
Plaintiffs waited until July 1, 2012 to file this action, a mere month away
from the August referendum and just four months from the November general
elections.
This unreasonable procrastination in the exercise of their rights, for
which the Plaintiffs proffered no plausible explanation during the evidentiary
hearing, stands inapposite to the immediacy of the injury they claim. In
Respect Maine Pac, the First Circuit denied granting the Plaintiffs an
emergency injunction enjoining Maine’s election laws in part because of the
untimeliness of the suit, stating:
In determining the weight to be accorded to the
appellant’s claims, we also note that this “emergency”
is largely one of their own making. The appellants, well
aware of the requirements of the election laws, chose
not to bring this suit until August 5, 2010, shortly
before the November 2 elections...
Respect Maine Pac, 622 F.3d at page 16.
Similarly, in Justice v. Hosemann, 829 F.Supp.2d 504 (D.C. Miss. 2011),
the Court accorded significant weight to the lateness of the Plaintiffs’ motion
for
preliminary
injunction,
filed
nineteen
days
before
the
Mississippi
elections and noted: “It is well established that in election-related matters,
extreme diligence and promptness are required.” Justice, 829 F.Supp.2d at 520
(citing McClafferty v. Portage County Bd. Of Elections, 661 F.Supp.2d 826, 839
(N.D.Ohio 2009); Cf. Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.
Ed. 2d 506 (1964) (“under certain circumstances, such as where an impending
election is imminent and a State’s election machinery is already in progress,
equitable considerations might justify a court in withholding the granting of
immediately effective relief in a legislative apportionment case.”))
Further, “precedent shows that such a delay indicates ‘an absence of the
kind of irreparable harm required to support a preliminary injunction.’” 2008
U.S. Dist. LEXIS 83307 *35 (D.Ariz. October 17, 2008) (citing Citibank, N.A.
v. Citytrust, 756 F.2d 273, 276 (2nd Cir.1985)).
Plaintiffs claim that there has been no unreasonable delay on their part
and rely on the Declaration of Ivan Diaz, Secretary Treasurer of SPT, stating
Civ. No. 12-1531 (PG)
Page 12
that it was not until June 15, 2012 that SPT voted to make expenditures in
connection with the 2012 election. See, Diaz Decl., Docket No. 10-2 at ¶ 13.
Yet, when taking into consideration that the Propuestas had been under
discussion for at least a decade; that the Plaintiffs approved them on November
19, 2011 and that, at least the UGT, had voted to conduct direct activities to
promote the Propuestas in the upcoming elections since February of 2012, the
only plausible conclusion is that Plaintiffs did not act diligently in bringing
this action.
Furthermore, Plaintiffs failed to put forth a convincing explanation as
to why they did not follow the procedure provided by
Section 3.003(e) of Law
222 prior to filing the present action. Section 3.003(e) provides as follows:
The Election Comptroller shall have following powers,
duties and functions:
(e) To issue administrative orders and opinions to
comply with this or any other authority granted under
this Act or the regulations adopted thereunder. The
Election Comptroller may issue opinions or circular
letters at the request of any party or motu proprio when
he/she deems it necessary;
Had Plaintiffs requested an opinion from the Election Comptroller as to
the application and scope of some of the challenged statutes in due time,
perhaps their questions could have been addressed without the need to bring
this lawsuit.
In light of these factors, the Court finds that the Plaintiffs did not
meet their burden of establishing irreparable injury.
C. Balance of Harms and Public Interest
“When resolving preliminary injunction motions, “[a]ny potential
harm caused to [a plaintiff] by the denial of its motion must be balanced
against any reciprocal harm caused to [the defendant] by the imposition of an
injunction.”” Avaya, Inc. v. Ali, No. 12–10660–DJC, 2012 WL 2888474, at *8
(D.Mass. July 13, 2012) (citing Touchpoint Solutions, Inc. v. Eastman Kodak
Co., 345 F.Supp.2d 23, 32 (D.Mass.2004). Moreover, a preliminary injunction is
not appropriate unless there is “a fit (or lack of friction) between the
injunction and the public interest.” Nieves-Marquez v. Puerto Rico, 353 F.3d
108, 120 (1st Cir.2003). Here, the court finds that both factors tip in the
defendants’ favor.
Firstly, Law No. 222, among other things, imposes certain disclosure
and reporting requirements regarding political expenditures on corporations and
other judicial entities. The aforementioned Statement of Motives of Law No. 222
makes reference to the Commonwealth’s informational interest.
Civ. No. 12-1531 (PG)
Page 13
In addition, Section 2.001 of Law No. 222 establishes, in relevant part,
that the entities and instruments created by the statute are necessary to
ensure and guarantee citizens an election process that is based on procedures
that allow the flow of information to voters. Moreover, the Statement of
Motives of Law No. 35 sets forth that with Law No. 222, “Puerto Rico became one
of the first jurisdictions of the United States to harmonize its electoral
legislation with Citizens United … .” It further states that the registration
and reporting requirements imposed by Law No. 222 “ensures the freedom of
expression of corporations, while providing to the electorate the information
regarding the identity and source of the resources used for the political
messages trying to have an influence on the same.”
Although the plaintiffs here request that the defendants be enjoined
from implementing the statutes in question prior to the upcoming November 6,
2012 elections, the Court finds that the balance of equities and the public
interest cut against preliminary enjoinment. Granting the plaintiffs the
emergency relief they now seek in effect leaves the government without the
tools to implement its informational interest and thereby maintain an informed
electorate. If disclosure is prevented, the people of the Commonwealth will be
denied the ability to fully inform themselves of the circumstances surrounding
this election. See Justice, 829 F.Supp.2d at page 520 (denying preliminary
injunctive relief to informal discussion group seeking to enjoin enforcement
of Mississippi’s political committee and individual registration, reporting,
and disclosure statutes as a violation of free speech and association rights
where potential harm to state outweighed potential harm to group and injunction
would not serve public interest in being fully informed on initiative).
Second, “the disruption that would be caused by the invalidation of
[these] disclosure requirement[s], on the eve of the election, would be
substantial.” Worley v. Roberts, 749 F.Supp.2d 1321, 1325 (N.D.Fla. 2010). In
fact, in Respect Maine PAC, 622 F.3d 13, the First Circuit Court of Appeals
denied the plaintiffs’ request for an emergency injunction enjoining the
application of Maine’s election laws considering, in part, the considerable harm
an injunction would cause the candidates that had relied on the challenged
statutes and the chaos that would ensue if laws were invalidated “in the crucial
final weeks before an election.” Id. at 16. In Respect Maine PAC, the plaintiffs
had brought suit barely three months before the elections asserting facial and
as-applied challenges to the constitutionality of certain provisions of Maine’s
election laws that set independent expenditure reporting requirements and
limited contributions to candidates for governor. See id. Acknowledging that the
Civ. No. 12-1531 (PG)
Page 14
issues raised by the challenges to Maine’s laws were difficult and required
careful analysis, see id. at 15, the First Circuit denied the emergency motion
“[g]iven the potential harm to Maine and to all candidates if the emergency
injunction were granted, and the public interest in maintaining the status quo
during the period of the Court’s deliberations,” id. at 16.
Finally, as previously noted, the court must also consider the fact that
plaintiffs have waited until the eleventh hour to seek injunctive relief. It
stemmed from the evidence submitted in the briefs and the hearing that the
plaintiffs allowed at least four months (from February until July of 2012) to
elapse before filing the present suit. Therefore, pursuant to the applicable
law, the plaintiffs undue delay has afforded their claim little weight under the
applicable balancing test. See Respect Maine PAC, 622 F.3d at 16 (“In
determining the weight to be accorded to the appellants’ claims, we also note
that this “emergency” is largely one of their own making. The appellants, well
aware of the requirements of the election laws, chose not to bring this suit
until August 5, 2010, shortly before the November 2 elections.”).
Considering the circumstances surrounding this case are so similar to
the ones in Respect Maine PAC, we must forcefully conclude that the balance of
hardships and consideration of the public interest weigh against injunctive
relief.
IV. CONCLUSION
Pursuant to the foregoing, the plaintiffs’ Motion for Preliminary
Injunction (Docket No. 10) and Supplemental Motion (Docket No. 20) are hereby
DENIED. Pending before the court is thus the Plaintiffs’ request for declaratory
judgment.
IT IS SO ORDERED.
In San Juan, Puerto Rico, on September 27, 2012.
S/ JUAN M. PEREZ-GIMENEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE
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