Examining Board of Engineers, Architects and Surveyors v. Flores de Otero – Oral Argument – December 08, 1975

Media for Examining Board of Engineers, Architects and Surveyors v. Flores de Otero

Audio Transcription for Opinion Announcement – June 17, 1976 in Examining Board of Engineers, Architects and Surveyors v. Flores de Otero

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Warren E. Burger:

We will hear arguments next in Examining Board of Engineers against De Otero and others.

Mrs. De Rodon?

Miriam Naveira De Rodon:

Mr. Chief Justice and may it please the Court.

This case comes up before this Court on an appeal from a decision of a Three-Judge District Court in Puerto Rico which in a divided opinion declared unconstitutional the citizenship requirement of Section 689 of Title XX of the Laws of Puerto Rico annotated.

The pertinent part is printed in italics on page 10a in following of the jurisdictional statement.

Appellees are resident aliens who applied to the Examining Board of Engineers in Puerto Rico for Registrations as Licensed Engineer even though — and even though they were non-citizens they did not attempt to establish their eligibility under Section 689 by demonstrating that they had studied the total courses in Puerto Rico.

The Examining Board denied them the application and appellees, instead of availing themselves of the review established by law in Section 701, immediately repaired to the Federal Courts and applied under the jurisdiction of the Civil Rights 1983 and its jurisdictional counterpart 1343.

It should be noted that Section 689 has never been construed by the Local Courts.

Under the Courts of Puerto Rico are courts of general jurisdiction empowered to grant all remedies which can be granted by the Federal Courts and or course that review can finally be granted to this Court.

Appellees are at present, as far as I was able to ascertain, working for the government of Puerto Rico or its municipalities under a special license as provided by Section 689 of that very same law.

This case is of the utmost importance to the Commonwealth of Puerto Rico and it has great significance because it raises two very important issues to us.

Whether Section 1983 of the Civil Rights Act and its jurisdictional counterpart, Section 1343 are applicable to Puerto Rico and second, whether the District Court should have abstained from passing upon the interpretation and validity of a statute which had never been construed by the Commonwealth Courts.

William H. Rehnquist:

Is there also a question of whether the Fourteenth Amendment applies to Puerto Rico?

Miriam Naveira De Rodon:

Well, neither this Court nor the Circuit Court nor the District Court has ever found it necessary to determine whether the Due Process of the Fourteenth or the Fifth Amendment is applicable since it found that the fundamental rights of the constitution are applicable to the people of Puerto Rico and we think that that is the best way not to specify.

Potter Stewart:

But you do?

Miriam Naveira De Rodon:

Yes.

Potter Stewart:

You do concede that either the Fourteenth Amendment or the Fifth Amendment is applicable to the people of Puerto Rico and that the net result is the same whichever?

Miriam Naveira De Rodon:

Yes sir.

Potter Stewart:

That is the due process clause of the Fourteenth Amendment?

Miriam Naveira De Rodon:

Yes.

Potter Stewart:

And that the Due Process Clause of the Fifth Amendment also embraces the concept of equal protection?

Miriam Naveira De Rodon:

Yes sir.

It should be noted that at present, the misuse of Section 1983 and its jurisdictional counterpart, 1343 in the Federal District Court of Puerto Rico has literally flooded the Court with all conceivable types of cases in which every facet of government action and decision making, whether major or minor is being questioned to the point where there is a real question as to who is really running the government.

William H. Rehnquist:

Is that different then from the 50 States of the Union?

Miriam Naveira De Rodon:

I believe so sir because in Puerto Rico, the civil rights actions that are being filed are not being filed, let us say like in the prisoner’s cases or in racial discrimination cases or in certain definite type of cases.

In Puerto Rico, they cover every government facet.

For example, I will give you an example.

The removal of employees, the approval of probationary periods, the transfer of employees, the disciplinary actions instead of going through the administrative processes available in law, they will repair to the Federal Court.

The Federal Court will assume jurisdiction and there will be a trial of complete — this thing will be seen in the Federal Court.

If the government announces of a policy that it plans to drill oil in the outlying skirts or that it plans to mine copper, immediately we get an action in Federal Courts and the court does assume jurisdiction and the whole procedure goes on. And I think that if one examines the types of action that are being filed, one finds that there is definitely a difference between the 50 States and Puerto Rico.A

Miriam Naveira De Rodon:

ppellees invoked the District Court’s jurisdiction, solely on the basis of Section 1343 and Section 1983 of the Civil Rights Act and we submit that neither apply nor were intended to apply to Puerto Rico.

Our arguments are based on the Carter case which was decided by this Court and declared the neither Section 1983 or it jurisdictional counterpart, 1343 were applicable to the District Court of Columbia.

Now, in the case of the Commonwealth as well as in the case of the District of Columbia to determine whether a statute is applicable, one must examine not only the words, but also the context, the purpose and the circumstances in which the words are being used.

Sections 1983 and 1343 have their roots in the Ku Klux Clan Act of 1871 when it was first enacted to cover just dates.

It was not until 1874, when the substantive measure, that is when 1983 was amended to include territories.

No such amendment was made to the jurisdictional part.

It was in 1875 that the District Courts got general jurisdictional over Federal questions and it was until 1898 that the United States acquired Puerto Rico after the Spanish-American War.

Ever since the very beginning, in the Insular Cases, Puerto Rico has been considered an unincorporated territory not intended for statehood and this Court in Carter said when expressing its view on the territories covered by Section 1983 that they were applicable to territories in a transitory nature in the process of becoming a state.

In 1952, the people of Puerto Rico and the people of the United States enter into a compact and thereby created a new sovereign entity with the the Federal political structure, the Commonwealth of Puerto Rico.

Now, as stated in Carter, the Section 1983 was designed to apply to states and to territories which were in the process of becoming a state. Puerto Rico is neither.

Furthermore, the conditions upon which Section 1983 had intended to correct whenever present in Puerto Rico, the courts of the island have always been able and willing to vindicate the civil rights of individuals and have the power and the procedural mechanisms to grant all remedies that may be granted by Federal Courts.

We submit that in the absence of a more definite guidance from Congress, Section 1983 and 1343 should not be held applicable to the Commonwealth of Puerto Rico.

On the abstention question, we think that this Court in Calero-Toledo case rendered an abstention doctrine which was quite wide and liberal for the Commonwealth.

Citing from the Wock (ph) and Hawk opinion it stated, “do you regard to the statutes of the Commonwealth under its compact to the United States dictate that it should have the primary opportunity through its courts to determine the intended scope of its own legislation and to pass upon the validity of that legislation under its own as well as under the constitution.”

(Inaudible)

Miriam Naveira De Rodon:

Yes.

If you fail on the first?

Miriam Naveira De Rodon:

Yes, of course the only alternative.

In this case where the statute and question has never been construed by the courts of Commonwealth and where it may very well be interpreted in such a way as to avoid the constitutional question, abstention with it would be very appropriate.

Section 689 does not contain an absolute prohibition against non-citizens obtaining licenses.

What is meant by total courses has never been interpreted by the Supreme Court of Puerto Rico and could very well be interpreted to mean courses directly related to the peculiarities of a poor, overpopulated small tropical island, subject to such tropical hazards as earthquakes, hurricanes and flash floods.

The Supreme Court of Puerto Rico has been reluctant to attribute to the legislature an intention to pass a statute raising constitutional problems, especially when the legislative intent is not clear as in this case where there is practically no legislative history to go upon.

It should also be noted that the constitution of Puerto Rico contains besides a general equal protection clause, a specific prohibition against discrimination on account of race, color, sex, birth, social origin or condition or political or religious ideas.

If a statute does not measure up to these constitutional principles and standards, the courts do not have to reach the federal constitutional question.

As was recognized by this Court in the Calero-Toledo case, the relationship between the United States and Puerto Rico has been the object of numerous debates in international forums, especially in the United Nation where the creation of a Commonwealth in 1952, prompted the United States to seize transmitting information concerning Puerto Rico under Article 73(c) of the Charter which deals with non-self governing territories, thus recognizing that a new sovereign entity had been created within the constitutional structure.

Whether Puerto Rico has true internal self government is debated still in the international community, especially by the Third World.

Thus, that this be so, in fact, as well as in theory is important to both the United States and Puerto Rico.

We submit, therefore, that the abstention in this case and the case of Puerto Rico is especially appropriate and in accord with the compact between the United States and Puerto Rico and with the difference that this Court has always shown to the courts of the Commonwealth.

As this Court rightly pointed out in the Fornaris case, the relations of the Federal Courts to Puerto Rico have often raised delicate problems.

This is especially true today, when the misused of Section 1983 and 1343 has produced a fantastic increase in a number of cases filed in the Courts of Puerto Rico and has led to an ever increasing intervention of the Federal Judiciary into practically all aspects of governmental functioning and even minor decision making.

Miriam Naveira De Rodon:

But even more disturbing than all this is the fact that federal juries had been handing down incredibly high amounts of damages in cases of this kind.

For example, they awarded $250,000.00 in damages in a case involving the removal of a local government employee where a violation of Due Process was alleged based on a Federal Court’s interpretation of a local statute which had never been construed by the Supreme Court of Puerto Rico.

This case —

William H. Rehnquist:

Were those compensatory damages or punitive damages?

Miriam Naveira De Rodon:

They — it divided.

In compensatory, they granted a $100,000.00 in actual damages and I think $150,000.00 in punitive damages.

This case is actually on appeal before the First Circuit.

It should be borne in line that the language requirement of Federal Jury service in Puerto Rico makes the Federal Jury a very selective one for a large portion of the island’s inhabitants are not sufficiently bilingual as to enable them to qualify for jury service, Spanish being the native tongue.

Under Section 1983 and 1343 as I have already told this Honorable Court, some purely local matters are taken before the court and the court does assume jurisdiction.

All these cases which I am talking about are normally taken directly to the Federal Courts bypassing the administrative procedures available and the local courts.

We even have the situation where those cases which are pending, applications for dismissal are made and people repaired to the Federal Court.

No allegation is made that the administrative or local procedures are inadequate.

It is just that they prefer the Federal Court.

The congestion of the court calendar that has not sued has made it necessary sometimes to set cases for Saturdays and for after 5 o’clock during the week.

We have had cases which have lasted until after midnight.

William H. Rehnquist:

Mrs. De Rodon let me asked you if I may about the language in which the Federal Court Proceedings are conducted and then the language in which the Commonwealth Court Proceedings are conducted?

Miriam Naveira De Rodon:

Yes, the Federal Court Proceedings are all conducted in English.

The Local Court Proceedings are all conducted in Spanish save if the right of the individual before the court would be put in jeopardy then they are carried on in English.

William H. Rehnquist:

Well, then that put certainly at a disadvantage many lawyers, I suppose who represent clients who speak only Spanish and who are brought into the Federal Court?

Miriam Naveira De Rodon:

Well, the Federal Bar in Puerto Rico is also very selective.

You find that there are few lawyers who practice in the Federal Bars in contrast with the amount of lawyers that practice in the local bar and not always by choice, but because of great difficulty in the language.

We have had a bill pending before Congress to try to remedy that, but still the proceedings have to be conducted in English and this especially, if the Court will pardon me the digression, this is especially sad in the case where you have a criminal or a person, an accused person before the court who speaks no English and you have to have translators where everybody in that court speaks Spanish, yet you have to go through the role of translating something that everybody understood in the original language anyway.

I supposed that you are confined to Puerto Rico and yet I supposed we have to think, if we were to decide in your favor, the possible application of it to Guam, the Virgin Islands and others, do you have any comment on that?

Miriam Naveira De Rodon:

Well, I think that as the test is that you should analyze the situation in each case in particular and find out if the same situations that are in Puerto Rico would be in Guam or the Virgin Islands in order to determine whether they would be in the same position as we are and the decision should be the same.

That would have —

Thurgood Marshall:

(Inaudible), is not?

Miriam Naveira De Rodon:

Excuse me?

Thurgood Marshall:

The 53 Act or whatever it is, Puerto Rico is different from any other one?

Miriam Naveira De Rodon:

Yes, after the 1952 Act, Puerto Rico has the only commonwealth position within the Federal structure, yes, that is true.

There is none other like it.

Miriam Naveira De Rodon:

Actually — yes?

Are you familiar with our decision in the Bivens Case?

Miriam Naveira De Rodon:

Excuse me?

Are you familiar with our decision in the Bivens Case?

Miriam Naveira De Rodon:

I have to refresh my memory, I do not.

Well, I just wondered that was the case in which we dealt with the possibility in the District of Columbia, notwithstanding 1983 does not apply to the District Columbia course because it is not a state or territory within 1983, there might nevertheless perhaps be an action for alleged deprivation of constitutional rights in the Federal Courts of the District without reference to 1983?

Miriam Naveira De Rodon:

Yes.

Did you consider that?

Miriam Naveira De Rodon:

No, I did not Your Honor, I am sorry.

I would like to finish by stating.

I think the Court should be aware, at present we have a 106 cases filed and pending against Commonwealth Officials in the Federal Courts and about 80 to 85 of these are predicated in Section 1983 and 1343.

These cases cover as I told you not just a few phases, but ever phase of government action that could be imaginable.

I think the Commonwealth is advocating that the invasion into the Commonwealth Governmental functions by the Federal Judiciary is not only having an undesirable, paralyzing effect on government officials due to the extraordinarily high awards that are gotten in Federal Courts, but it is also causing a traumatic damage into the relations of Puerto Rico and the United States.

And I think that as this Court has already indicated in the Wock (ph) and Hawk and the Calero-Toledo case and we agree the doctrine of abstention for Puerto Rico should be liberally construed and applied and we submit that in this case, the District Court should have abstained.

The compact of 1952, was it not?

Miriam Naveira De Rodon:

Yes, in 1952.

Do you think prior to 1952 and subsequent to 1917 the citizenship was granted, do you think 1983 was applicable then?

Miriam Naveira De Rodon:

Well, 1983 like I said before, the conditions which it was intended to correct whenever present —

I know, but you are also relying in part on the compact?

Miriam Naveira De Rodon:

Yes.

And I am just trying to go back to the pre-compact days and wonder whether the situation would be any different without the compact to rely on?

Miriam Naveira De Rodon:

Well, as to the jurisdictional because 1343 was never amended to include territories, it just included states and that was approved under the Fourteenth Amendment.

I do not think it never intended to cover territories.

In 1875, it was that the Federal District Courts — General Federal question jurisdiction and in the Relations Act, the Foraker Act, and the Jones Act and the Federal Relations Act that have applied Puerto Rico and then have a clause concerning the District Courts of Puerto Rico, they mentioned that the District Court of Puerto Rico has the same jurisdiction as courts in the United States, but if territories were not included as part of 1343, then that would not have made it applicable, they would have to go on under the General Federal question jurisdiction.

Thank you very much.

Warren E. Burger:

Mr. De Arellano?

Max Ramirez De Arellano:

Mr. Chief Justice and may it please the Court.

Before I enter into my argument proper, I would just like to make two comments on Mrs. De Rodon’s introduction.

First of all, in the matter of no showing of eligibility, the fact is and this is a fact in both these cases that these plaintiffs are completely eligible for unconditional licenses as engineers, except for the requirement citizenship, they have met every single other requirement under Section 689 of Title XX.

Secondly, the matter of the multiplicity of Civil Rights actions in Puerto Rico, I think that is a wonderful thing, not a terrible thing. It shows I think her statistics show and prove the great need in Puerto Rico for the statute.

Warren E. Burger:

The need for burden to do with the jurisdiction, is that so?

Max Ramirez De Arellano:

That is true.

In any case, though I think this Court is faced with a constitutional question of the first order, the effect of denying — of accepting the Commonwealth’s argument in this case is to deny the 3 million citizens of the United States’ resident in Puerto Rico, coverage under the Fourteenth Amendment, that is denial against violations of the rights protected by the Fourteenth Amendment of the United States.

But we already, I mean, 1983 is inapplicable at Puerto Rico?

There is not any other source of jurisdiction substantively — of the substantive right in the District Courts?

Max Ramirez De Arellano:

Only it will have to be under the Fifth Amendment of the Constitution of the United States.

What about our Bivens decision?

Max Ramirez De Arellano:

I am not familiar with the decision, Your Honor.

Byron R. White:

Well what about the proceeding under 1331 as long as you can allege $10,000.00?

Max Ramirez De Arellano:

As a Federal question, yes.

Well, that is where the First limitation is the jurisdiction of amount of course.

Byron R. White:

Well that was — but it is satisfied in this case, is it not?

Max Ramirez De Arellano:

It might be.

The Solicitor General in his briefs thinks that —

Byron R. White:

Do you think that if you do not prevail in this case, if you lose this case, would you think it would mean that you could not proceed under 1331?

Max Ramirez De Arellano:

I think, I could Your Honor, yes.

Byron R. White:

You think you could proceed and if you can satisfy the jurisdictional amount requirement, you could sue government officials under 1331?

Max Ramirez De Arellano:

Raised in a Federal question, yes.

Byron R. White:

Well, it is –the constitutional question is fairly Federal, is it not?

Max Ramirez De Arellano:

Of course.

William H. Rehnquist:

Does the argument you were making a moment ago suggest that there was some constitutional problem if Congress chose to exclude the Puerto Rico from the ambit of 1983 or 1343?

Max Ramirez De Arellano:

No, no.

The Court is faced with a matter of statutory interpretation, yeah, but the scope of Section 1983 because the Fourteenth Amendment as I understand it, it does not apply per se to the territories.

It was applied to territories in 1874 through Section 1983.

The main contention of the Commonwealth in this case is that under this Court’s decision in District of Columbia versus Carter, there is no jurisdiction under Section 1334.

They try to raise a syllogism in this case.

They say that the District of Columbia was found to be Sui generis in the constitutional scheme and that Puerto Rico is Ejusdem Generis in the constitutional scheme.

They say under the Carter, the Civil Rights Act was found not to apply, therefore, it does not apply in Puerto Rico. I think this is a false syllogism.

In Carter, this Court was also faced with a matter of statutory interpretation.

What was the scope of Section 1983?

Max Ramirez De Arellano:

In trying to find this scope, it went back to the old case of Puerto Rico versus the Shell Company where it stated that it was the character and aim of a statute which serves to define the terms of the statute, specifically in Carter the scope of the term state or territory and the court asked, what was the purpose of the 1874 Amendment to Section 1983?

And it found that it was the intent of Congress when it amended the Civil Rights Act to extend the Fourteenth Amendment protection to the territories acting under Article 4 of the Constitution of the United States, territorial power.

The reasons for this, that is like reasons for Congress in passing this amendment were that it had experienced certain difficulty in controlling what were then far flung territories and Congress had delegated some of its lawmaking powers to territorial legislators.

Therefore, these two factors combined to make the territories more like states in so far as problems of Civil Rights jurisdiction were concerned.

Therefore, they equated territories with states in so far as Section 1983 was concerned. The District of Columbia on the other hand in that case was found to be under the direct control and supervision of Congress.

It is the seat of national government.

Therefore, the reasons that Congress had in extending Fourteenth Amendment protection to the territories did not exist in the case of the District Columbia.

William H. Rehnquist:

So, would it be your position then that 1983 would not have applied to Puerto Rico up until 1952, but afterwards it did?

Max Ramirez De Arellano:

No, on the contrary, under Shell Company, it would have to have apply, it would have have — would have been held to apply had the issue been raised to pre 1952 Puerto Rico.

I do not think there can be any doubt about that.

William H. Rehnquist:

Well, did the Congress not — when did Congress lose its general authority to legislature of Puerto Rico?

Max Ramirez De Arellano:

My contention is that it has not.

William H. Rehnquist:

Well, then why is it not governed by District of Columbia versus Carter?

Max Ramirez De Arellano:

Because Puerto Rico in 1952 gained a certain amount of autonomy and it is this autonomy which has made it more like a state.

William H. Rehnquist:

But I thought that certainly one of the tests in Carter was the fact that Congress would not have wanted to give a special cause of action in Federal Courts to people whose grievances could be corrected by Congress itself and I would take it that would be true in case of Puerto Rico, if Congress has still has general legislative authority?

Max Ramirez De Arellano:

Well, it is true in any of the territories.

In other words, Congress can act in Puerto Rico under Article 4 and correct whatever grievances it may think need correcting.

This is both before and after 1952.

Does Calero help you (Inaudible)?

Max Ramirez De Arellano:

Yes, Calero-Toledo recognized or that in amending Section 1983, Congress was acting under Article 4, but except in that same footnote it states that it was not necessary in that case to decide whether it was the Fifth or Fourteenth Amendment which applied to Puerto Rico.

Byron R. White:

Is that the case that deals with the statutory (Inaudible)?

Max Ramirez De Arellano:

Yes, for the purposes of Three-Judge Court jurisdiction as each of these appellate statutes is treated separately and differently by this Court.

So to get back to Mr. Justice Rehnquist’s question if I may, in applying Shell Company to Puerto Rico at the present time, we find the Puerto Rico is autonomous as to local matters. There is no direct control as a practical matter right now by Congress.

There is no day-to-day supervision the way there is here in the District.

Therefore, Puerto Rico is the type of place where Congress wanted Section 1983 to apply when it amended it.

William H. Rehnquist:

You think that since Congress granted the District Home rule a year ago or two years ago, the result should now be different in Carter?

Max Ramirez De Arellano:

I do not know how far home rule goes or whether there are any actual actions, I am not familiar with home rule at all.

Warren E. Burger:

Well, they have independent courts just as Puerto Rico does.

They do not have senators or congressmen as Puerto Rico does not.

There are certain similarities, are they not?

Max Ramirez De Arellano:

Yes, but still there is a question that this is the seat of the national government. It is a place created by the constitution itself.

I do not think that Puerto Rico can be equated with the District of Columbia in the constitutional scheme.

They both may be unique, but it is a different type of uniqueness.

I gather your submission is that Puerto Rico remains a territory within the meaning of 1983, even the Commonwealth Act I gather, constitutionally has its source in the authority of Congress to regulate the territory?

Max Ramirez De Arellano:

The committee reports to Public Law 600 specifically so stated.

They stated that this Public Law 600 was a further act in the administration of territories under Article 4 of the constitution.

So the question is whether after 1952, Puerto Rico became any different as regard to Section 1983.

Warren E. Burger:

I think there are, whatever the differences are between the District of Columbia and Puerto Rico. Is Puerto Rico not more independent and unique than the District of Columbia as compared with other states?

Max Ramirez De Arellano:

I was going to say it was more like a state than it is like the old-time territories.

Warren E. Burger:

Well, it does not have representation in the Congress?

Max Ramirez De Arellano:

There is a resident commission —

Warren E. Burger:

Well, do you have a vote — do you vote in Federal Elections?

Max Ramirez De Arellano:

No sir.

Warren E. Burger:

District of Columbia, people do?

Max Ramirez De Arellano:

Because the constitution so provides.

Warren E. Burger:

Only very recently.

Is there not much more reason for Puerto Rico to maintain autonomy of traditions and customs and culture —

Max Ramirez De Arellano:

That is all very fine — I am sorry.

Warren E. Burger:

— than the District of Columbia for example?

Max Ramirez De Arellano:

Yes, as long as the Commonwealth Government does not start impinging on rights guaranteed by the Constitution of the United States.

That is as far as they can go and that is how far as any state can go, as far as any territory go, that is as far as the District of Columbia can go.

I do not think Puerto Rico has the right to go any further than the District of Columbia than the Federal Government or than any other state or territory?

William H. Rehnquist:

Well, if we held otherwise in Carter, at least the courts under which the state — district respondent would have been brought via Federal Court would have been one that presented no language problem, now I certainly concede that you do not use that as a test for deciding whether the statute applies, but if you are thinking of the matter as rather closely balanced, it does strike me that the Federal Court down there may be fairly inhospitable to people who do not speak the language in which it is conducted?

Max Ramirez De Arellano:

Your Honor, the language problem is the same for everybody before the Court, both plaintiffs and defendants.

Second, I do not think the proper solution to the language problem would be to say that there are no more civil rights in Puerto Rico.

The solution is to say, well, let the District Court in Puerto Rico conduct its proceedings in Spanish.

Now it is my contention, the contention of plaintiffs in this case that after 1952, if anything Puerto Rico became more like a state than anything else.

I should point out that since 1952, not a single Federal Statute that had been held to apply to Puerto Rico before 1952 has ever been held inapplicable to post 1952 Puerto Rico.

In other words, to hold now that Section 1983 does not apply would be the first time that this Court or any court as far as I know has held that a Federal Statute applicable to pre 1952 Puerto Rico is inapplicable to post 1952 Puerto Rico.

Going back again, also to the Shell Company Case, we have to find — we have to look at the intent of Congress in 1952 when it granted Puerto Rico the power to draft its constitution.

Max Ramirez De Arellano:

I think it is quite evident that Congress was very concerned that the constitutional rights, United States Constitutional rights be preserved in Puerto Rico.

After 1952, the joint resolution approving the constitution of Puerto Rico provided that the constitution would not go — enter into effect unless it conformed with the applicable provisions of the constitution of the United States.

Section 2 of the Federal Relations Act which was continued in effect by Public Law 600, equates Puerto Rico with the state of the union in so far as the rights, privileges, immunities of its citizens are concerned.

It is interesting that this is the same language used in Section 1983.

When Congress was studying the proposed constitution, it required an amendment to the proposed Article 7 to the effect that the applicable — that no subsequent amendment to the Puerto Rico Constitution would be passed that did not conform to the applicable provisions of the United States Constitution.

The conference report to Senate, 3336 which later became Public Law 600, stated that this matter that is that the proposed Puerto Rico Constitution and Public Law 600 would be a “Fundamental contribution to the art and practice of the government and administration of territories under the sovereignty of the United States.”

In other words, Public Law 600 in the constitution of Puerto Rico are merely a further step in the administration of territories under Article 4 of the Constitution of the United States.

Finally, on this point, it is also clear from the legislative history surrounding Public Law 600 that the changes brought about by the law where only matters of “purely local concern,” this is a quote from the committee report to Public Law 600.

So in concluding on this point, the argument of the Commonwealth that leads to the conclusion that Congress advocated its responsibility under Article 4 that it just withdrew Section 1983 protection from post 1952 Puerto Rico is contrary to all the legislative history surrounding Public Law 600.

Now, if this Court finds that Puerto Rico is a state or territory within the meaning of Section 1983, then the substantive matter presented to the Court or in this case, like some of it has already been decided by the case of In re Griffiths, nevertheless, the Court, I mean, Commonwealth is arguing that it is entitled to a broader or more liberal test regarding its justification for the discrimination against aliens.

I should point out that the discrimination here is not against just these plaintiffs.

It is not a personal discrimination.

It is an across the board discrimination.

The justification presented by or the reasons why the Commonwealth thinks it should be entitled to a broader test or more liberal tests is first of all because of its special position or rather because it is different from the state or the union and second because of the specific factual situation existing in present day Puerto Rico.

On the first point, the position of the Commonwealth, it is my contention that constitutional uniqueness or uniqueness under the constitutional scheme or in the constitutional scheme is not the same as exemption from the requirements of that constitutional scheme.

The test of a justification should not be the position of the governmental authority imposing the discrimination, but rather the effect of that discrimination on the person being discriminated against.

The aliens in this case do not care whether, I do not know, the Federal Government or a territorial government or the government of something called the Commonwealth of Puerto Rico that is denying them equal protection of the laws, they are still being denied equal protection of the laws and the effect is that they are being denied their right to work, to exercise a profession solely because they are aliens.

In their brief, the Commonwealth cites or refers to general unemployment figures in Puerto Rico, but it does not cite what it should cite which is the unemployment figures for engineers in Puerto Rico.

They do not cite general per capita income, I mean, they do cite general per capita figures, they do not cite per capita income figures for engineers.

The reference to illegal immigration I believe is completely irrelevant.

No showing was made that immigration tends to be among professionals or engineers or any a thing of the sort and I am sure this Court will agree that no such showing could probably be madeParenthetically, the Commonwealth in its brief seems to say on page 20 that the states have the right to regulate what they call the influx of aliens through their boarders.

I submit that this is incorrect, going back at least as far as Hines versus Davidowitz in 1941.

On a matter of employment or engineers in Puerto Rico just 10 days ago, the President of the University of Puerto Rico, Dr. Arturo Morales Carrion was quoted in an interview in a local newspaper to the effect that in his opinion the orientation of education at the University of Puerto Rico should change from what it has been in the future and is now from liberal arts towards sciences and engineering because Puerto Rico needs people trained in Sciences and Engineering.

There is a lack of this type of training in Puerto Rico and the whole university orientation should shift toward this type of training.

What do you think what purpose would be served — I gather this statute is not checked in before your Supreme Court, has it?

Max Ramirez De Arellano:

That is correct.

Would it serve any purpose in light of the issue that has involved in the constitutional issue to send it to that court?

Max Ramirez De Arellano:

I do not think so Your Honor.

There is nothing that needs to be interpreted —

I gather what the interpretation, I gather to satisfy you would have to be that aliens are not subject to the –?

Max Ramirez De Arellano:

That is right.

There is no question but that this statute Section 689 applies to aliens.

It says if you are an alien, you cannot get a license.

There is no way can we construed not to apply?

Max Ramirez De Arellano:

Either you are an alien or you are not and either it does or does not apply to aliens and it says it does.

There is nothing left there for Supreme Court —

There is not like the Fornaris statute?

Max Ramirez De Arellano:

Where you had a vague statute.

Nobody knows what is just cause, nobody knew then, nobody still knows what just cause means?

So I understand.

Max Ramirez De Arellano:

The co-compelling state interest put forth by the Commonwealth here boils down to denial of employment to aliens for the sole reason that they are aliens.

This is abundantly evident in the committee report to the amendment to the engineering statute.

The committee reports said that other countries have requirements similar to the requirement being considered in this amendment, that is they require that people coming to work in these other countries be citizens of the country and that the purpose of the amendment wants to conform the law of Puerto Rico to the law of these other countries.

That is the only reason put forth in the Committee Reports on the amendment for the amendment itself.

The matter of Civil Code responsibilities were used by the Commonwealth in their brief is also false issue.

If we look at the statute we find that aliens who receive their education in Puerto Rico are entitled to unconditional licenses.

Yet the Commonwealth forgets these aliens are just as free to live Puerto Rico as our aliens who have studied elsewhere.

The same is true as to United States citizens who have received their educations in States or the Union.

They also are entitled to unconditional licenses.

The statute contemplates reciprocity agreements between Puerto Rico and the States of the Union.

These United States citizens from other states are just as free to live Puerto Rico in case of trouble as our aliens who have studied elsewhere.

I cite the case of Empresas Capote versus Superior Court in my brief.

In this case, there involved a question of the meaning of the term contractor in the Civil Code Chapters concerning Civil Responsibility for construction defects.

The Supreme Court stated — the Supreme Court of Puerto Rico stated that the term contractor is not limited to professional engineers or architects.

It means anybody who has promised to produce a certain result or to render a certain service and the fact is that in Puerto Rico there are very many people who practice the professional as I might call as that of contractor, that is they put up buildings, they put up whole buildings and they are not engineers.

If we are going to require some contractors to be citizens and others not, I understand there is a violation of Due Process of the law, excuse me, of equal protection.

In summary, if I may, in borrowing the abstention question, this Court I think has three courses open to it in this case.

It can affirm the judgment in the District Court, state that Section 1983 applies and that is the Fourteenth Amendment.

Secondly, it can state that only the Fifth Amendment applies to Puerto Rico.

However, this I think would have the effect of equating Puerto Rico with an old time territory, subject to direct control by Congress under Article 4 and limited then by the Due Process Clause of the Fifth Amendment.

Max Ramirez De Arellano:

I do not think that even the Commonwealth would have agree to go this far or it can determine that neither the Fifth nor the Fourteenth Amendment applies.

This I think would result in I think intolerable constitution vacuum in Puerto Rico because it would be the same as saying that Puerto Rico is independent country which is not.

It would be the same as saying that U.S. citizens residing in Puerto Rico are in the same position as your citizens residing in say France.

Finally, the Commonwealth request that if the Court finds that Section 1983 does not apply, oh! No that is my argument.

Potter Stewart:

There is no real discussion of these questions in the District Court?

Max Ramirez De Arellano:

No there is not.

All this was raised before this Court.

Potter Stewart:

I suppose the reason is that these are all that thrush out in the District Court and then the First Circuit and that the law had been established in your favor, is that correct?

Max Ramirez De Arellano:

There are several cases in the District Court that are already decided the same point against the Commonwealth.

Potter Stewart:

May I ask you one more question?

I forgot that you are responsible for this, but maybe you can at least clarify.

I have before me two copies of what this label of brief for the United States as amicus curiae, both seem to have been filed on November 29, 1975, one has a gray color and one has a white color, do you have any explanation for that?

Max Ramirez De Arellano:

I have only seen the one with white cover.

Potter Stewart:

Are they the same thing.

Max Ramirez De Arellano:

I have never seen the gray one before, I do not know.

Potter Stewart:

Thank you.

Warren E. Burger:

Do you have anything further?

Miriam Naveira De Rodon:

May it please the Court.

I was told by the Solicitor General that it had typographical errors and that is why they had it printed again.

I asked the question on the two and that is the answer the Solicitor General gave.

Potter Stewart:

So which is the corrected copy then?

Miriam Naveira De Rodon:

I think it is the gray one because I got the one with the typographical error the white one and I was told that they were going to print it again.

Potter Stewart:

Thank you very much.

Miriam Naveira De Rodon:

I wanted to just to clarify a few points.

We do not agree with the fact that the statute is absolutely clear.

The Commonwealth Courts have not had the opportunity of interpreting what is meant by how sturdy the total course, whether this means to have gone through the three years of University in Puerto Rico, whether these are topping of courses necessary to practice engineering Puerto Rico, this has never been interpreted.

My colleague interpreted to me the whole three years in Puerto Rico, I do not know how the Supreme Court of Puerto Rico would interpret that case in particular whether it is speaking about going through the entire university or just some specific courses which would qualify the alien to practice law in Puerto Rico to unique circumstances of Puerto Rico itself.

I would also like to clarify that we are not alleging or contending that the Federal Constitution does not apply to Puerto Rico and that the Federal Constitutional rights are not applicable to individuals in Puerto Rico.

We are just contending that Section 1983 and 1343 are not applicable which is a statutory construction.

Byron R. White:

What about 1331, Federal Questions Jurisdiction?

Miriam Naveira De Rodon:

I think specifically Puerto Rico is mentioning 1331 specifically as applicable and I think is.

Well, that was not a jurisdiction not here?

Miriam Naveira De Rodon:

Excuse me?

Then was it not a jurisdiction in this case, under 1331.

Miriam Naveira De Rodon:

They did not allege 1331 in the lower court.

Possibly there could have been.

No.

William H. Rehnquist:

The alleged $10,000.00 in dispute?

Miriam Naveira De Rodon:

No.

William H. Rehnquist:

Well, then there was in 1331 jurisdiction?

Miriam Naveira De Rodon:

No, they did not make any allegations except 1343 in their jurisdictional basis —

Byron R. White:

What about in this stage of litigation?

How much damages were awarded?

Miriam Naveira De Rodon:

Nothing.

Byron R. White:

What is involved in the case?

Miriam Naveira De Rodon:

In the constitutionality, I mean the declaratory judgment in the constitution, statute was one of the complaints —

Byron R. White:

So no one knows how much?

Miriam Naveira De Rodon:

No and these people are working with the government so I really do not know how much damages if any, could be — if it is $10,000.00 I cannot determine.

Well, does it say so in the complaint?

Miriam Naveira De Rodon:

Yes, it does.

It was clear?

Miriam Naveira De Rodon:

Yes, it does say so.

Thank you very much.

Warren E. Burger:

Thank you.

This case is submitted.