United States Court of Appeals
For the First Circuit
No. 03-2416
CESAR TORRES-TORRES,
Plaintiff, Appellant,
v.
COMMONWEALTH OF PUERTO RICO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch, Lipez and Howard,
Circuit Judges.
Pablo Landrau Pirazzi and Aldarondo & Lopez Bras on brief for
appellant.
Eileen Landron Guardiola, Eduardo A. Vera Ramirez, Annabelle
Rodriguez, Secretary of Justice, Ivonne Palerm Cruz, Deputy
Secretary of Justice in Charge of Litigation, and Landron & Vera,
LLP. on brief for appellee Commonwealth of Puerto Rico.
Pedro A. Delgado Hernandez on brief for appellee State
Elections Commission.
October 31, 2003
Per Curiam. This is a challenge to a Puerto Rican law,
21 P.R. Laws Ann. § 4101(f), that permanently disqualifies as a
candidate for mayor any person who has been removed from public
office for misconduct.1 Plaintiff Cesar Torres-Torres, a member of
the New Progressive Party (NPP), seeks to run for mayor of the
municipality of Juncos. Pursuant to § 4101(f), however, he has
been barred from doing so because of his removal from that post in
1987. Objecting to such "decertification," plaintiff filed the
instant action under 42 U.S.C. § 1983 alleging that the statute
contravened the First and Fourteenth Amendments. The district
court rejected those claims on the merits and plaintiff has
appealed.
Severe time constraints are present: plaintiff filed the
appeal on October 17, 2003 and, rather than seeking a stay, has
requested that a decision be issued before November 9, 2003, the
date of the NPP primary. By agreement, the parties have filed
briefs on an expedited basis and have waived oral argument. Having
fully reviewed the record and the parties' submissions, we now
affirm.
Background
This action is a reprise of one filed by plaintiff in
1988. After being disqualified from that year's mayoral race
1
Section 4101(f) requires that a mayoral aspirant "[h]ave
never been removed from office or employment for misconduct in the
performance of his/her duties."
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pursuant to a (similarly worded) predecessor to § 4101(f),
plaintiff mounted a constitutional challenge. The ensuing district
court opinion, Torres v. Comision Estatal de Elecciones, 700 F.
Supp. 613 (D.P.R. 1988), recounts much of the pertinent procedural
background. We rely thereon and for present purposes deem it
sufficient to note the following.
Plaintiff was elected mayor of Juncos in 1976 and was
reelected in 1980 and 1984. In 1986, the governor, a member of the
Popular Democratic Party (PDP), summarily suspended him from office
and filed a complaint with the Municipal Complaints Commission, an
agency authorized to adjudicate allegations of mayoral misconduct.
See 21 P.R. Laws Ann. § 4108 (current version of removal
provision). The charges against plaintiff included misuse of
public funds, inexcusable negligence, and conduct detrimental to
the public interest. In June 1987, following 18 days of hearings
at which plaintiff was represented by counsel, the Complaints
Commission issued a resolution upholding all charges and ordering
his removal.2 Plaintiff's attempt to obtain judicial review of
this ruling was ultimately rejected as untimely. See Hernandez-
2
As described in its decision, the Commission found
"repeated acts" of "appropriation of public funds for the purpose
of paying election-related debts through the preparation of false
documents" and "cases in which public officials appropriated
municipal funds and divided them with other persons for their own
use." Decis. at 29-30. The district court in Torres could not
"emphasize enough the gravity of these offenses." 700 F. Supp. at
624.
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Colon v. Torres, 21 P.R. Offic. Trans. 516 (1988). As a result,
"the Complaints Commission's factual findings and conclusions
[became] final and not subject to review." Torres, 700 F. Supp. at
616. Plaintiff has never been indicted, tried, or convicted for
any of the charges against him.
As mentioned, plaintiff was disqualified from the 1988
mayoral election because of the predecessor to § 4101(f). In the
ensuing litigation, the Torres court rejected his challenges to
that provision, even while voicing reservations about extending the
disqualification "beyond the election immediately following the
term in which a person is dismissed." Id. at 625. After sitting
out two electoral cycles, plaintiff sought to be certified as an
independent candidate for the 2000 election. He was again declared
ineligible and was again denied judicial relief (from the
Commonwealth courts). He ended up running as a write-in candidate
and came in second to the PDP candidate by a margin of 7,453 to
6,574 votes.
Plaintiff filed the instant action in April 2003,
alleging that he wanted to run as the NPP's mayoral candidate in
the 2004 election but was barred from doing so by § 4101(f). The
magistrate judge concluded that plaintiff was likely to prevail on
the merits and recommended that a preliminary injunction issue.
The district court took a different view, first denying the request
for a preliminary injunction and later rejecting plaintiff's claims
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on the merits. Meanwhile, the Elections Commission in September
2003 again decertified plaintiff as a candidate.
Discussion
Ballot-access cases typically involve both a First
Amendment claim (involving the associational and voting rights of
candidates and their supporters) and an equal protection claim
(challenging a classification between groups of candidates).
Although the two claims often overlap, it is sometimes appropriate
to analyze them separately under different standards of review.
Plaintiff in his complaint relied solely on equal protection. Yet
his subsequent pleadings included a First Amendment claim, and
defendants addressed both allegations on the merits without any
suggestion of waiver, as did the magistrate judge. We therefore
conclude that both claims have been adequately presented. See,
e.g., Mancuso v. Taft, 476 F.2d 187, 190 (1st Cir. 1973) (noting
that candidate has standing to "raise the constitutional rights of
voters").
First Amendment Claim
As the parties agree, this claim is subject to the
balancing test promulgated in Anderson v. Celebrezze, 460 U.S. 780,
789 (1983).3 The Court has more recently summarized that test as
follows:
3
While the district court did not expressly apply the
Anderson test, much of its reasoning is directly applicable
thereto.
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When deciding whether a state election
law violates First and Fourteenth Amendment
associational rights, we weigh the character
and magnitude of the burden the State's rule
imposes on those rights against the interests
the State contends justify that burden, and
consider the extent to which the State's
concerns make the burden necessary.
Regulations imposing severe burdens on
plaintiffs' rights must be narrowly tailored
and advance a compelling state interest.
Lesser burdens, however, trigger less exacting
review, and a State's important regulatory
interests will usually be enough to justify
reasonable, nondiscriminatory restrictions.
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)
(internal quotation marks and citations omitted). Under this
standard, "[t]he rigorousness of the ensuing judicial inquiry
depends upon the extent to which the challenged regulation burdens
First Amendment rights." Perez-Guzman v. Gracia, ___ F.3d ___,
2003 WL 22309626, at *9 (1st Cir. 2003). We think it clear that §
4101(f) as applied to plaintiff is sustainable under this test, for
reasons that can be briefly explained.
First, the burden on plaintiff's and voters' rights under
the First Amendment is not severe, which means that strict scrutiny
is inapplicable. Candidacy does not rise to the level of a
fundamental right. See, e.g., Clements v. Fashing, 457 U.S. 957,
963 (1982) (plurality). And § 4101(f) applies even-handedly,
without discriminating on the basis of viewpoint or any other
suspect classification. It is true that plaintiff's supporters--a
sizable group judging from the 2000 returns--will be deprived of
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their candidate of choice. But as the Court stated in Timmons:
"[t]hat a particular individual may not appear on the ballot as a
particular party's candidate does not severely burden that party's
associational rights." 520 U.S. at 359. Because plaintiff's
supporters retain the option of voting for another NPP candidate
with a similar viewpoint, their voting rights will be only
marginally affected.
Second, it is undisputed that the Commonwealth has a
legitimate and powerful interest in eradicating public corruption.
See, e.g., Nixon v. Shrink Missouri Gov. PAC, 528 U.S. 377, 389
(2000) ("The importance of the governmental interest in preventing
[corruption] has never been doubted.") (quoting First Nat'l Bank of
Boston v. Bellotti, 435 U.S. 765, 788 n.26 (1978) (brackets in
original)).
Under the final Anderson criterion, as mentioned, a
regulation need not be narrowly tailored to advance a compelling
state interest where, as here, the impact on First Amendment rights
is not severe. Instead, "less exacting review" is called for.
Timmons, 520 U.S. at 358. Plaintiff, relying on the reservations
voiced in dictum by the Torres court, see 700 F. Supp. at 625,
nonetheless contends that a lifetime disqualification cannot be
justified. In particular, he relies on (1) the prospect of §
4101(f) being employed to discriminate against political
adversaries, (2) the statute's failure to allow for possible
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rehabilitation, and (3) the long-term effects on voters' rights.
We are unpersuaded.
As to the first point, there is no evidence that
plaintiff's removal as mayor was politically motivated, and the
Torres court specifically found that the statute "ha[d] not been
discriminatorily applied to the plaintiff." Id. at 622.4 This
being an as-applied challenge, plaintiff's concern about possible
discrimination against others is misplaced. His second point
overlooks the fact that § 4101(f) not only "punishes corruption but
also deters it." Id. at 624. And it fails to account for more
recent case law rejecting constitutional challenges to lifetime
disqualifications of various sorts. See, e.g., Gregory v.
Ashcroft, 501 U.S. 452, 470-73 (1991) (mandatory retirement age for
elected judges); Citizens for Legis. Choice v. Miller, 144 F.3d
916, 920-24 (6th Cir. 1998) (lifetime term limits for state
legislators). Plaintiff's final point proves unavailing given §
4101(f)'s minimal impact on the rights of voters, as earlier
discussed.
We conclude that § 4101(f) constitutes a "reasonable,
nondiscriminatory restriction" which, under the Anderson test, is
sustainable under the First Amendment in light of the
Commonwealth's "important regulatory interest" in combating
4
Plaintiff has not here claimed to be innocent of the
misconduct charges. And he forfeited his chance to challenge his
removal by not timely seeking court review.
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corruption at the municipal level. Timmons, 520 U.S. at 358
(internal quotation marks omitted).
Equal Protection Claim
This allegation requires little discussion. As the claim
has been narrowed on appeal, plaintiff complains of the disparate
treatment afforded by § 4101(f) as compared to 3 P.R. Laws Ann. §
1491. The latter, a general provision applicable to all public
servants, prohibits inter alia any person convicted of certain
misdemeanors from seeking or holding any elective office or public
service position for eight years.5 Such a classification is
subject to rational-basis review, see, e.g., Clements, 457 U.S. at
963 (plurality), and is readily sustainable thereunder.
It suffices to note the following. The legislature could
rationally conclude that mayoral aspirants should be subjected to
more stringent sanctions than other government employees--
particularly given the importance of the mayor's office in Puerto
Rico. See, e.g., Torres, 700 F. Supp. at 623-24. Likewise, the
legislature need not treat all current or former officeholders
equally, but instead may regulate "one step at a time, addressing
itself to the phase of the problem which seems most acute."
Clements, 457 U.S. at 969 (plurality) (internal quotation marks
omitted); accord id. at 973-74 (Stevens, J., concurring).
5
We deem plaintiff's earlier argument concerning § 1491's
effect on convicted felons to have been abandoned.
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Conclusion
For these reasons, we conclude that § 4101(f) as applied
to plaintiff violates neither the First Amendment nor the Equal
Protection Clause. Accord Popular Democratic Party v. Planadeball
Poggy, 21 P.R. Offic. Trans. 566 (1988) (rejecting constitutional
challenges to predecessor statute under Commonwealth law).
Affirmed.
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