Asociación de Alcaldes demanda a Walter Vélez

Case 3:20-cv-01405-GAG Document 1 Filed 08/12/20 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO PUERTO RICO ASSOCIATION OF CIVIL NO. : MAYORS; HON. LUIS J. HERNÁNDEZORTIZ, personally and in his Official Capacity as Acting President of the Puerto Rico Association of Mayors; Plaintiffs V.S. CIVIL RIGHTS

HON. WALTER VÉLEZ-MARTÍNEZ, in his Official Capacity as Elections Comptroller for Puerto Rico Defendant

VERIFIED COMPLAINT TO THE HONORABLE COURT: COMES NOW plaintiff, through the undersigned attorneys and very respectfully SETS FORTH and PRAYS: I. 1.1.

JURISDICTION AND VENUE

This Honorable Court has jurisdiction over the instant action pursuant to

the federal question jurisdiction statute, 28 U.S.C. § 1331; 28 U.S.C. § 1343(3) for claims asserted pursuant to 42 U.S.C. § 1983 for violations of plaintiffs’ rights under the First Amendment of the United States Constitution.

1.2.

The District of Puerto Rico is the proper venue to hear this case, as per 28

U.S.C. § 1391(b)(2), as all of the relevant events occurred within the territorial limits of the Commonwealth of Puerto Rico.

Case 3:20-cv-01405-GAG Document 1 Filed 08/12/20 Page 2 of 9

II. 2.1.

THE PARTIES

Plaintiff Puerto Rico Association of Mayors (hereinafter referred to as “the

Association”) was founded in the year 1949 as a non-profit domestic corporation chartered for the purpose of advancing policies and initiatives related to proper municipal governance as well as to promoting the wellbeing of its members, all of whom are individuals who hold the position of mayor. Currently, all 45 municipal governments whose mayors were elected as candidates for the Popular Democratic Party (hereinafter referred to as “PDP”)1. The First Amendment injury for which relief is being sought affects all members of the Association for common reasons.

2.2.

Plaintiff, Hon. Luis J. Hernández-Ortiz is the mayor of Villalba, a position

to which he was elected as a member of the PDP. He currently also holds the position of First Vice-President for the Association and is serving as acting President of the organization while its President, the Hon. José Román-Abreu, mayor of San Lorenzo, is receiving treatment for and recovering from a serious medical condition.

2.3.

Defendant Walter Vélez-Martínez holds the position of Elections

Comptroller for Puerto Rico (hereinafter referred to as “Comptroller”), a position created pursuant to Puerto Rico Law 222 of November 18, 2011, as amended, 16 P.R. Laws Ann. § 621, et seq. (hereinafter referred to as “Law 222”). The statutory powers of this office include the authority to “issue administrative orders and opinions, upon decision of the Board of Election Comptrollers, to comply with this or any other power granted under

The remaining 33 mayors were elected as members of the New Progressive Party (hereinafter referred to as “NPP” and belong to a sister organization named “Puerto Rico Federation of Mayors”, which was founded in 1968, which promotes the same municipal governance interests as the Association. It is not uncommon for the Association and for the Federation to put up a united front before legislative and judicial fora.

1

2

Case 3:20-cv-01405-GAG Document 1 Filed 08/12/20 Page 3 of 9

this chapter or the regulations adopted thereunder”. 16 P.R. Laws Ann. § 622c(e).

Defendant is being sued solely in his official capacity.

2.6.

Although we have chosen not to include her as a party to the instant action

even though the instant action is governed by the Federal Rules of Civil procedure, out of an abundance of caution, plaintiff will serve copy of the pleadings in the instant action to the Puerto Rico Attorney General, as they would have been required to in local court as per Rule 21.3 of the Puerto Rico Rules of Civil Procedure.

III. 3.1.

THE FACTS

Before delving into the merits of the instant action we find it necessary to

recount two historical developments that must be understood to place the instant action in proper context, to wit: 1) the rise of social media; and 2) the increased regulation of campaign financing in Puerto Rico.

3.2.

During the middle of the Twentieth Century, in the dawn of the computer

era, scientists began developing comprehensive electronic communications networks for military purposes, later expanding the newly invented methods to civilian applications and uses.

3.3.

In the latter part of the past century, the concept of the “World Wide Web”

or “Internet” was developed and became increasingly available to the average citizen, evolving into an integral part of modern society and into the prime source for news, financial information, etc.

3.4.

The fact that the instant action is being electronically filed, without

plaintiffs or their attorneys having to set foot in the Clerk’s Office is testament as to how

3

Case 3:20-cv-01405-GAG Document 1 Filed 08/12/20 Page 4 of 9

far the trend has advanced and to how many important activities are currently performed online.

3.5.

Of particular relevance to the instant case is the fact that, with a nominal

investment, anyone is now able to purchase a “domain” and set up a web site to promote his/her ideas and beliefs, with little to no government oversight2.

3.6.

Even easier that setting up a web page is joining a social platform such as

Facebook, Twitter, Instagram and the like, allowing for similar content as a private web page, albeit subject to each company’s terms of service agreements.

3.7.

Internet and social media postings have become so popular that they have

been found to be very effective for both having the government deliver important information to the citizenry and for promoting political aspirations in the democratic process, with the current President of the United States being the world’s most prominent social media presence.

3.8.

All 78 municipal governments have official web and/or social media pages

that are maintained either by municipal personnel or by private companies retained for such purposes and are used to disseminate official information as well as to aid in the provision of certain services.

3.9.

All 78 mayors (including the one named in the caption) have personal

and/or campaign web and/or social media pages which they use to post any content (political or otherwise) that they, in their sole discretion, deem appropriate.

The internet is the proverbial new frontier and, as such, is policed for the most part in the context of violent/sexual crimes and terrorism. Only in the recent decades have major countries began legislating on this matter, as well as entering into international treatises.

2

4

Case 3:20-cv-01405-GAG Document 1 Filed 08/12/20 Page 5 of 9

3.10.

On the other hand, Section 9, Article VI of the Puerto Rico Constitution

requires that public funds be only used for public purposes (i.e., for the advancement of legitimate public policies).

3.11.

Beginning with PPD v. Rosselló González, 139 D.P.R. 643 (1995), the Puerto

Rico Supreme Court began to stress how the aforementioned constitutional provision proscribed the use of public funds/resources by elected officers to further partisan or otherwise political interests.

3.12.

With the years, several legal reforms were made to regulate matters such as

spending limits, conflicts of interest and misuse of public funds in campaign activities, ending with the enactment of Law 222 and the institution of the Office of the Elections Commissioner.

3.13.

On June 20, 2020, Hon. Wanda Vázquez-Garced signed Senate Bill 1314,

which became Law 58-2020, otherwise known as the “New Electoral Code”.

3.14.

The New Code placed the Board in charge of evaluating that government

publicity is not used for political purposes under the Comptroller’s authority, thereby expanding said officer’s authority to police the use of public funds to advance any bid for elective public office.

3.15.

Much to plaintiffs’ surprise and dismay, on July 17, 2020, defendant issued

Circular Policy Letter OCE-DET-2020-02. See Exhibit 1.

3.16.

The document begins with an unchallenged assessment that defendant has

the lawful authority to monitor official government web and social media pages for improper political content and to level administrative fines against those who violate this norm.

5

Case 3:20-cv-01405-GAG Document 1 Filed 08/12/20 Page 6 of 9

3.17.

Where defendant’s proposed policy goes off the constitutional rails is at

page 3, wherein it is announced that the purpose of the circular policy letter is to consider as official web/social media pages those in which content is provided mainly by a “principal officer� (a term that encompasses all mayors) regardless of whether or not such page was created and/or is maintained by said officers privately.

3.18.

In this unprecedented overreach, the Comptroller warned that the pages

mentioned in the previous paragraph were subject to his oversight (and sanctions for non-compliance) and were proscribed from alluding to political parties, candidates or other election related content.

3.19.

Needless to say, every single mayor is entitled to speak, through his/her

electronic media, regarding their accomplishments in public office and their arguments in favor of their election, including attacks on the character/qualifications of their political rivals.

3.20.

On July 31, 2020, the day before the challenged circular letter was supposed

to become effective, defendant issued a press release moving the date in which the restrictions set forth in OCE-DET-2020-02 would take effect to August 17, 2020, that is, a week after the August 9, 2020 NPP and PDP primary election. See Exhibit 2.

3.21.

While plaintiffs could very well engage in very detailed legal pleadings

regarding the unconstitutionality of OCE-DET-2020-02, we refer the Court to the discussion in the legal brief that is also being filed on this same date, in support of our request for the issuance of a temporary restraining order. Suffice it to say that political speech enjoys full First Amendment protection. Citizens United v. FEC, 558 U.S. 310, 371

6

Case 3:20-cv-01405-GAG Document 1 Filed 08/12/20 Page 7 of 9

(2010). Those who compete as candidate in the political process may not be required to forfeit their First Amendment rights in order to do so.

3.22.

Electronic media is a crucial political campaign tool with which defendant

has inexplicably chosen to interfere right in the home stretch for the general election scheduled for November 3, 2020.

3.23.

The government’s censorship of personal electronic media is bad enough at

any time but is particularly injurious where the COVID-19 pandemic has all but eliminated typical street-level campaigning.

3.24.

The suppression of political speech through the use of improper

government regulation, under penalty of fines, constitutes a justiciable case of First Amendment violations common to all mayors.

3.25.

Both the Association and the Federation fully comply with the

requirements for representative standing under Warth v. Seldin, 422 U.S. 490 (1975) and progeny and their appearance is better suited for purposes of procedural economy than the accumulation of 78 plaintiffs.

3.26.

Plaintiffs are entitled to a declaration that the proposed regulation of the

political content in the personal electronic media of mayors, as stated in OCE-DET-202002 is in violation of the First Amendment’s protection of freedom of speech.

3.27.

The full frontal attack on plaintiffs’ First Amendment political speech rights

is so blatant that said parties are extremely likely to succeed on the merits of their claim.

If defendant is allowed to, through the illegal regulation of their electronic media, chill plaintiffs’ political speech in the face of an election an irreparable injury will certainly ensue. While the challenged policy letter is extremely onerous on plaintiffs’ free speech,

7

Case 3:20-cv-01405-GAG Document 1 Filed 08/12/20 Page 8 of 9

it does nothing to advance defendant’s statutory oversight. The public interest will greatly suffer if political candidates have to temper their expressions to conform to government censorship and/or oversight.

Consequently, plaintiffs are entitled to

interlocutory and permanent injunction relief to be effected by means of an order for defendant to refrain from enforcing the challenged provisions of OCE-DET-2020-02.

3.28.

Pursuant to 42 U.S.C. § 1988, plaintiffs are entitled to attorney’s fees

(assessed under the lodestar method).

WHEREFORE it is respectfully requested from this Honorable Court that the relief requested in the foregoing action be hereby GRANTED. In San Juan, Puerto Rico this 12th day of August, 2020.

RESPECTFULLY SUBMITTED,

M.L. & R.E. LAW FIRM 513 Juan J. Jiménez St. San Juan, Puerto Rico 00918 Tel (787) 999-2972

S/Jorge Martínez Luciano

JORGE MARTÍNEZ LUCIANO USDC-PR Number 216312 e-mail: jorge@mlrelaw.com

S/Emil Rodríguez Escudero EMIL RODRÍGUEZ ESCUDERO USDC-PR Number 224312 e-mail: emil@mlrelaw.com

8

Case 3:20-cv-01405-GAG Document 1 Filed 08/12/20 Page 9 of 9