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Copr. © West 1999 No Claim to Orig. U.S. Govt.
Works
--- F.Supp.2d ----
(Cite as: 1998 WL 858237 (D.Puerto Rico))
Joanna DiMarco ZAPPA, Plaintiff
v.
Hector Rivera CRUZ, et al, Defendants.
No. CIV. 88-692(JP).
United States District Court,
D. Puerto Rico.
Nov. 23, 1998
Examinee who failed real estate broker license examination
sued Real Estate Examining Board under § 1983, alleging that
Board violated her constitutional rights by making English version
of examination more difficult that Spanish version, and seeking
damages and injunction. The United States District Court for the
District of Puerto Rico granted injunction requiring Board to
issue broker's license to examinee, but denied examinee's later
request for trial on damages. Examinee appealed from order denying
trial on damages. The Court of Appeals, 20 F.3d 507, vacated and
remanded. On remand, the District Court, Pieras, J., held that:
(1) board members were not entitled to qualified immunity, and
(2) punitive damages and attorney fees were warranted.
Order in accordance with opinion.
[1] FEDERAL COURTS k265
170Bk265
Eleventh Amendment bars court from hearing claims for damages
against the Commonwealth of Puerto Rico. U.S.C.A. Const.Amend.
11.
[2] CIVIL RIGHTS k214(2)
78k214(2)
Qualified immunity shields government officials performing discretionary
functions from civil liability for money damages when their conduct
does not violate clearly established statutory authority or constitutional
rights of which a reasonable person would have known. 42 U.S.C.A.
§ 1983.
[3] CIVIL RIGHTS k214(2)
78k214(2)
Officials of Puerto Rico's Real Estate Examing Board violated
clearly established equal protection guarantee by providing continental
Americans with a different real estate broker's exam than those
given to native Puerto Rican applicants and then grading their
exams unfairly, and therefore officials were not entitled to qualified
immunity in civil rights action. U.S.C.A. Const.Amend. 14; 42
U.S.C.A. § 1983.
[4] CONSTITUTIONAL LAW k213.1(2)
92k213.1(2)
Fourteenth Amendment prohibits state action which favors or disfavors
a person or persons relative to those similarly situated based
on some classification that bears an insufficient relationship
to any legitimate governmental interest. U.S.C.A. Const.Amend.
14.
[5] CONSTITUTIONAL LAW k215
92k215
When state actors in Puerto Rico classify continental Americans
for disparate treatment, their actions, where they fail to withstand
strict scrutiny, violate the Equal Protection Clause. U.S.C.A.
Const.Amend. 14.
[6] CIVIL RIGHTS k275(1)
78k275(1)
In an action under § 1983, punitive damages are available
where a defendant's conduct is shown to be motivated by evil motive
or intent, or when it involves reckless or callous indifference
to the federally protected rights of others. 42 U.S.C.A. §
1983.
[7] CIVIL RIGHTS k275(1)
78k275(1)
Punitive damages were warranted where officials of Puerto Rico's
Real Estate Examing Board discriminated against continental Americans
on basis of their heritage by providing them with a different
real estate broker's exam than those given to native Puerto Rican
applicants and then grading their exams unfairly. U.S.C.A. Const.Amend.
14; 42 U.S.C.A. §1983.
Arturo Aponte Pares, San Juan, PR, for Plaintiffs.
Ana M. Otero Cintron, Department of Justice of Puerto Rico
Federal Litigation Division San Juan, PR, for Defendants.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDERS
PIERAS, District Judge.
I. INTRODUCTION AND BACKGROUND
*1 The Court held a bench trial on September 18, 1997 to determine
the amount of damages owed by Defendants to the remaining Plaintiff,
Joanna DiMarco Zappa ("DiMarco"). [FN1] This Order will
(1) address the issue of immunity, (2) set forth the Court's findings
of fact and conclusions of law regarding damages, (3) address
the propriety of punitive damages and, finally, (4) address DiMarco's
right to attorneys' fees. Prior to that, however, the Court believes
a summary of this protracted and convoluted litigation is in order.
The Complaint in this case was filed on April 12, 1988, by
John Fulcher Harris ("Harris"). Harris's Complaint alleged
that he had taken the examination to become a realtor in Puerto
Rico in October 1987; that the exam had been given in English;
and that he had been notified in February 1988 that he had not
passed the exam. Harris' Complaint further alleged that when he
asked an employee at the Real Estate Examining Board when he could
take the exam again, he was told that the exam would no longer
be given in English, even though it had been given in both English
and Spanish each of the prior seven years. Harris sued under 42
U.S.C. § 1983 and Puerto Rico law, alleging that the Defendants
had (1) violated his right to take the exam in English, protected
by P.R. Laws Ann. tit. 1 § 51, [FN2] and (2) violated his
right to equal protection of the law, protected by the Fourteenth
Amendment [FN3] to the Constitution of the United States. He sought
injunctive relief in the form of an order directing Defendants
to give the realtor's exam in English, compensatory damages for
mental anguish, and attorneys' fees.
On April 18, 1988, Harris filed an Amended Complaint joined
by DiMarco. [FN4] The Amended Complaint restated Harris' original
allegations and further asserted that DiMarco had also taken the
October examination and been informed that she had failed. The
Amended Complaint also charged that DiMarco had requested and
been denied reconsideration, leaving her with no ability to determine
if the exam had been properly graded. Plaintiffs also asserted
that the English version of the exam had been different from the
Spanish version and that no person who had taken the English version
had passed. Moreover, when DiMarco had gone to the Examining Board's
offices, she had been told, "how do you think you are going
to sell real estate in Puerto Rico if you don't speak Spanish?"
When she asked why the exam would no longer be given in English,
she was told that "we have to worry about our people eating
rice and beans," clearly indicating that the Board was protecting
jobs in Puerto Rico from usurpation by continental Americans.
Plaintiffs' Amended Complaint again asserted a violation of P.R.
Laws Ann. tit. 1, § 51 and their right to equal protection
guaranteed by the Fourteenth Amendment; it included the new allegation
that their right to due process, also protected by the Fourteenth
Amendment, had been violated as well. Plaintiffs again sought
injunctive and monetary relief.
*2 On July 15, 1988, the Court heard the parties' arguments
with respect to Plaintiffs' request for injunctive relief. On
March 27, 1989, the Court issued a preliminary injunction and
ordered Defendants to give the realtor's exam in both English
and Spanish. At a status conference held in March, 1990, Defendants
agreed to continue giving the exam in English, nullifying the
need for a permanent injunction. On April 23, 1991, after several
years of protracted legal wrangling, the Court found that Defendants
had violated Plaintiffs' constitutional right to equal protection
of the law by giving them different exams than the exams given
to native, Spanish speaking Puerto Ricans applying for brokers
licenses and by grading their exams incorrectly and unfairly.
The Court analyzed Plaintiffs' exams and found that both had actually
passed the exam. Indeed, although Defendants had initially given
DiMarco a score of 64, the Court determined she had actually earned
a score of 97. The Court, finding that Plaintiffs' rights had
been violated, ordered Defendants to issue Plaintiffs the licenses
they had been wrongly denied. Believing all issues had been resolved,
the Court entered judgment. On July 1, 1991, the Court ordered
Defendants to pay costs in the amount of $614.00.
When Defendants finally issued Plaintiffs' certificates, the
certificates stated, on their face, that they had been issued
pursuant to court order. [FN5] On March 30, 1992, the Court ordered
Defendants to rectify the situation by supplying Plaintiffs with
licenses exactly like those issued to any other passing applicant.
Defendants failed to comply, and on August 10, 1992 the Court
found Defendants in contempt. Only then did Defendants comply
by issuing the proper certificates--over four years after denying
Plaintiffs' right to equal protection and over a year after the
Court had entered judgment ordering Defendants to desist from
discriminating against Plaintiffs and to issue their rightfully
achieved certificates.
On February 8, 1993, DiMarco [FN6] asked for a hearing on damages.
The Court, under the impression that all of the issues had been
resolved by the parties' mutual consent when the Court issued
its injunction and entered judgment, held that Plaintiffs had
waived any right to compensatory, monetary relief. DiMarco appealed,
and the United States Court of Appeals held (1) that Defendant
had the burden of proving that DiMarco had indeed waived any right
to monetary relief and (2) that Defendants had not carried their
burden. Harris v. Rivera Cruz, 20 F.3d 507, 511-12 (1st Cir.1994).
On remand, the Court held a hearing to determine whether DiMarco
had actually waived her right to further compensatory damages.
On February 20, 1996, the Court held that DiMarco had not waived
her right to damages and set a bench trial on damages. On September
18, 1997, the Court heard the parties' evidence and arguments
regarding DiMarco's damages. The Court will now address Defendants'
immunity defense and issue its findings of fact and conclusion
of law on the issue of damages.
II. IMMUNITY
A. Eleventh Amendment Immunity
*3 [1] The Eleventh Amendment bars this Court from hearing
claims for damages against the Commonwealth of Puerto Rico. De
Leon Lopez v. Corporacion Insular de Seguros, 931 F.2d 116, 121
(1st Cir.1991) ("the Eleventh Amendment, despite the absence
of any express reference, pertains to Puerto Rico in the same
manner, and to the same extent, as if Puerto Rico were a State").
Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1044 (1st Cir.1988)
(Puerto Rico has not waived Eleventh Amendment immunity to be
sued for damages in federal court); Ursulich v. Puerto Rico National
Guard, 384 F.Supp. 736, 737 (D.P.R.1974) (Puerto Rico has consented
to be sued for damages only in the Courts of the Commonwealth
of Puerto Rico) Suits against state officials qua state officials
are actually suits against the state. Will v. Michigan Dept. of
State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45
(1989). Therefore, Defendants in the case at bar cannot be held
liable in their official capacities for monetary damages.
B. Qualified Immunity
[2] "Qualified immunity shields government officials
performing discretionary functions from civil liability for money
damages when their conduct does not violate 'clearly established'
statutory authority or constitutional rights of which a reasonable
person would have known." Roldan-Plumey, 115 F.3d at 65 (quoting
Nereida-Gonzalez v. Tirado- Delgado, 990 F.2d 701, 704 (1st Cir.1993));
see also Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
73 L.Ed.2d 396 (1982). Defendants assert that they are protected
from liability by qualified immunity because the federal law they
violated was not clearly established. But in reaching this conclusion,
Defendants muddle the right at issue in this case--the right to
equal protection of the law--with laws "regarding a state's
prerogative in establishing an official language in which all
state government transactions have to be conducted." It is
in that misunderstanding of the right at issue that Defendants'
qualified immunity argument fails.
[3] The Amended Complaint alleged violations of (1) a Puerto
Rico statute establishing English as one of its two official languages
and (2) the federal constitutional guarantee that persons in the
United States will be afforded equal protection of the law. Although
Defendants purport to direct their attention toward the DiMarco's
equal protection claim, they confuse it with her Puerto Rico law
claim, asserting that no federal law clearly establishes that,
"as a matter of equal protection law, or principles of due
process of law, a state is barred from establishing Spanish or
English for that matter as the official language in which all
government business is to be conducted." Whether a state's
prerogative to chose an official language is circumscribed by
federal law, however, is of no moment to the case at bar. That
is so because the Constitution of the United States expressly
forbids state actors from discriminating against persons based
on invidious classifications, and that is what Defendants in this
case did. In other words, the constitutional violation committed
by Defendants was not their failure to provide the real estate
brokers test in English, [FN7] but the disparate treatment given
to Plaintiffs based on an impermissible classification--Plaintiffs'
status as continental Americans.
*4 [4] The Fourteenth Amendment prohibits state action which
favors or disfavors a person or persons relative to those similarly
situated based on some classification that bears an insufficient
relationship to any legitimate governmental interest. In other
words, the government may not treat similarly situated people
differently based on classifications made without justification.
The character of the classification determines the requirements
of the justification. Plyler v. Doe, 457 U.S. 202, 216-17, 102
S.Ct. 2382, 72 L.Ed.2d 786 (1982) (invidious classifications--those
based upon race, religion, nationality, alienage, or some other
suspect class--must serve a compelling government interest and
no less restrictive alternative can be available); Craig v. Boren,
429 U.S. 190-97, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (classifications
based on gender or illegitimacy must be substantially related
to the achievement of an important government objective); Schweiker
v. Wilson, 450 U.S. 221, 234-35, 101 S.Ct. 1074, 67 L.Ed.2d 186
(1981) (where the classification is neither invidious nor based
upon gender or illegitimacy, it will stand so long as it bears
some rational relationship to the advancement of a reasonable
and identifiable governmental objective). The evidence has demonstrated
beyond peradventure that Defendants treated Plaintiffs differently
because the latter were continental Americans--Defendants provided
them with a different exam than those given to native Puerto Rican
applicants and then graded their exams unfairly. They did so to
protect their "rice and beans," or, more precisely,
to assure that jobs in Puerto Rico are held by native Puerto Ricans.
Under the Equal Protection Clause of the Constitution, Defendants
had the obligation to evaluate both versions of the exam equally,
without discriminating against continental Americans, or grading
any version differently from the other. That is so regardless
of any alleged controversy relating to official language in government.
The obligation to treat continental Americans equally in Puerto
Rico cannot be gainsaid; and the Court emphatically holds that
any argument that such an obligation was not clearly established
when Defendants violated Plaintiffs' rights must fail. First,
the supremacy in Puerto Rico of the United States Constitution,
and of the Equal Protection Clause in particular, has been clearly
established. Posadas de Puerto Rico, 478 U.S. at 331 n. 1, 106
S.Ct. 2968. Second, the rule that classifications based on national
origin, ancestry, and/or race must withstand the strictest constitutional
scrutiny has also been clearly established. Plyler, 457 U.S. at
216-17, 102 S.Ct. 2382. And finally, the classification employed
by Defendants was clearly invidious, in the nature of classifications
based on national origin, ancestry, and race, and cannot withstand
strict scrutiny. Only the Court's final conclusion needs further
analysis.
While the philosophy of individual freedom underlying this
nation's constitutional and legal systems has not always been
inclusive, the moral and intellectual indefensibility of many
once-accepted distinctions has slowly but undeniably illuminated
our legislation and jurisprudence, if not the mind-set of most
Americans. It would be folly to deny the chequered past this nation
has with respect to the ill- treatment of many minorities. E.g.,
Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed.
194 (1944) (upholding the interment of Japanese Americans in detention
camps); Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct.
1375, 87 L.Ed. 1774 (1943); Plessy v. Ferguson, 163 U.S. 537,
16 S.Ct. 1138, 41 L.Ed. 256 (1896) (upholding "separate but
equal" doctrine); Dred Scott v. Sanford, 60 U.S. (19 How.)
393, 15 L.Ed. 691 (1856) (holding that members of "the negro
race" are not citizens for the purposes of the United States
Constitution and that the Declaration of Independence does not
include slaves as part of the people). Indeed, parts of the Constitution
itself are emblematic of the racism that our founding fathers
incorporated into the legal fabric of this nation. E.g., U.S.
Const. art IV, § 2 ("no Person held to Service of Labour
in one State, under the Laws thereof, escaping into another, shall,
in Consequence of any Law or Regulation therein, be discharged
from such Service or Labour ..."). But our nation's conscience
has evolved, and, based largely on the efforts and courage of
people like Abraham Lincoln, Martin Luther King, and Thurgood
Marshall, the law no longer tolerates state-sanctioned discrimination
based on racial or ethnic classifications. As a people and a nation,
we have come to act upon the indisputable knowledge that "distinctions
between citizens solely because of their ancestry are by their
very nature odious to a free people whose institutions are founded
upon the doctrine of equality". [FN8]
*5 The trailhead to the path of our nation's moral ascension
regarding invidious discrimination can be found in the abolitionist
movement supporting the eradication of institutionalized slavery.
Precipitated by the Dred Scott decision, the schism between the
states whose citizens advocated the abolition of slavery and the
states whose citizens sought the continuation of the insidious
practice erupted into the Civil War. The victory of the Union
forces was a victory for abolition and resulted in the emancipation
of all slaves. U.S. Const. amend. XIII, § 1. Within three
years of the ratification of the Thirteenth Amendment, the states
ratified the Fourteenth Amendment, the primary objective of which
"was to secure to the colored race, then recently emancipated,
the full enjoyment of their freedom." Holden v. Hardy, 169
U.S. 366, 382, 18 S.Ct. 383, 42 L.Ed. 780 (1898).
But in the decades following the civil war, our lawmakers and
judges backslided into an unjust accord--known as the "separate
but equal" doctrine-- that was justifiable in theory but
pernicious in practice. See Plessy, 163 U.S. 537, 16 S.Ct. 1138,
41 L.Ed. 256. It was not until the civil rights movement galvanized
again in the middle of this century that our nation was again
forced to address the issue of invidious discrimination. By dint
of courage, and utilizing the weaponry provided by the Fourteenth
Amendment, leaders of the civil rights movement were able to attack
and defeat such state- sponsored iniquities as segregation in
public schools. See Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct.
686, 98 L.Ed. 873 (1954). Then, with the enactment of the Civil
Rights Act of 1964, 42 U.S.C. § 2000a, Congress provided
a powerful weapon for fighting even private discrimination. The
civil rights statutes, in tandem with the Fourteenth Amendment,
have been employed to relegate invidious discrimination to the
small minds of a handful of bigots and to certain cultural backwaters
of our nation. In the last four decades, we have accomplished
much in the pursuit to ensure the civil rights of all people in
our country. Some have called this largely successful battle against
bigotry and discrimination our nation's finest achievement; but
the war has not been won, and so long as discrimination remains,
we must remain vigilant for abuses.
Moreover, the sweep of the battle has broadened, and our understanding
of discrimination comprises more than classifications based on
color-- discrimination can be more subtle without losing its insidious
character. Thus, while "the primary object of [the Fourteenth]
Amendment was to secure to the colored race, then recently emancipated,
the full enjoyment of their freedom," Holden, 169 U.S. at
382, 18 S.Ct. 383, the much broader scope of its impact has long
been established. See generally Slaughter-House Cases, 83 U.S.
(16 Wall.) 36, 21 L.Ed. 394 (1872); Holden, 169 U.S. 366, 18 S.Ct.
383, 42 L.Ed. 780; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064,
30 L.Ed. 220 (1886). Since its ratification, various minorities,
not all of whom can be classified by their race, have sought to
protect their rights via the Fourteenth Amendment's Equal Protection
Clause. E.g., Yick Wo, 118 U.S. 356, 6 S.Ct. 1064; Minor v. Happersett,
88 U.S. (21 Wall.) 162, 22 L.Ed. 627 (1874). And the Supreme Court
has long held that unjustified discrimination based upon ancestry
and/or national origin violates the Equal Protection Clause in
the same manner as classifications based on race. Saint Francis
College v. Al- Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 2028 n.
5, 95 L.Ed.2d 582 (1987); e.g., Hernandez v. Texas, 347 U.S. 475,
479, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Oyama v. California, 332
U.S. 633, 646, 68 S.Ct. 269, 92 L.Ed. 249 (1948).
*6 For obvious reasons, the Equal Protection Clause has seldom
been invoked to protect "Americans" from national origin
discrimination. Clearly, there are few places in the United States
where north Americans will be classified as such to their own
detriment. But Puerto Rico is such a place.
A. Discrimination based upon kind of
citizen classification.
All parties were casting the die of statehood when the United
States troops walked into the shores of Guanica, Puerto Rico,
and were welcomed by the local inhabitants; when the people living
in Puerto Rico were made United States citizens in 1917 and they
accepted such citizenship; when the United States citizens of
Puerto Rico gave their ounce of blood for the United States in
two World Wars, Korea, Vietnam, and the Gulf, with glee and great
patriotic fervor, [FN9] and when more than two million United
States citizens who were residing in Puerto Rico voluntarily moved
into the states of the union and by doing so accepted statehood
voluntarily. Because of the recalcitrance of some men, the matter
of statehood for the territory of Puerto Rico has not been formally
resolved. This ambivalence on both sides to close the circle and
to formally organize Puerto Rico into a state has created a difference
of civic proportions. As of today this difference sets apart both
United States citizens born or residing in Puerto Rico and those
born or residing in the other states of the Union.
Discrimination based upon the classification of kind of American
citizenship is suspect under the Constitution, and under the circumstances
of Puerto Rico the American citizens born or residing in Puerto
Rico are viewed by most Puerto Ricans as having a political condition
distinct from those born and/or residing in the states of the
Union. See generally Juan R. Torruella, The Supreme Court and
Puerto Rico: The Doctrine of Separate and Unequal, 269 (1985).
B. Ancestry classification.
[5] Because ancestry may not be as easy to classify as physical
attributes like skin color, the determination of whether a classification
based on ancestry has been established depends in large measure
upon the views held by members of the community where the alleged
discrimination occurs. Hernandez, 347 U.S. at 479, 74 S.Ct. 667
(burden of establishing that plaintiffs are members of a separate
class may be "demonstrated ... by showing the attitude of
the community"). Because it is so well known in this community,
the Court may take judicial notice that in Puerto Rico continental
Americans (often called norteamericanos, estadounidenses, or americanos
) are viewed by most Puerto Ricans as having a political condition
and heritage distinct from Puerto Rican Americans. Fed.R.Evid.
201(b). That is certainly not to say that most Puerto Ricans view
the distinction as a basis for discrimination, only that Puerto
Ricans generally do not consider themselves to be of the same
political and ethnic heritage as persons from the continental
United States. Puerto Ricans generally consider their heritage
and/or ancestry to be Spanish with black African influence or,
simply, Puerto Rican while continentals have a more diverse ethnic
and national background. Given the well-known fact that North
Americans are considered in this community to be of a distinct
political and ethnic heritage, discrimination based upon that
classification is suspect under the Constitution. The fact that
many norteamericanos in Puerto Rico cannot be distinguished solely
by physical appearance has no relevance. See Strauder v. West
Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1879) ("nor if
a law should be passed excluding naturalized Celtic Irishmen,
would there be any doubt of its inconsistency with the spirit
of the [Fourteenth] amendment"); cf. Al- Khazraji, 481 U.S.
at 613, 107 S.Ct. 2022 ("a distinctive physiognomy is not
essential to qualify for [42 U.S.C.] § 1981 protection").
Therefore, when state actors in Puerto Rico classify continental
Americans for disparate treatment, their actions, where they fail
to withstand strict scrutiny, clearly violate the Equal Protection
Clause. [FN10]
*7 Perhaps the Court's holding is better demonstrated by looking
at it from another perspective. Courts in the United States have
long held that Puerto Ricans comprise a distinct ethnicity, and
any classification based on that ethnicity is invidious. E.g.,
Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d. Cir.1987);
cf. Wright v. Rockefeller, 376 U.S. 52, 59-61, 84 S.Ct. 603, 11
L.Ed.2d 512 (1964) (Douglas, J. dissenting). Certainly, a law
in Vermont or Utah or Georgia denying Puerto Ricans the right
to hold real estate licences would violate the Clause. It is precisely
that classification that Defendants employed in this case--i.e.,
one segregating Puerto Ricans from non- Puerto Ricans. Although
the courts that have heretofore considered the classification
have done so in the context of continental Americans discriminating
against Puerto Ricans, logic and fairness require the same analysis
where the classification was effected in Puerto Rico in order
to discriminate against continental Americans. In sum, the Court
holds that discrimination against continental Americans in general,
and Defendants' conduct in this case specifically, violate the
clearly established constitutional guaranty that persons in this
country receive equal treatment under the law. Therefore, Defendants
can find no protection from the doctrine of qualified immunity.
That aside, the Court now reaches its findings of fact and conclusions
of law.
III. FINDINGS OF FACT AND
CONCLUSIONS OF LAW AS TO COMPENSATORY DAMAGES
1. As outlined in the procedural history of this case, stated
at length, supra, it was established long before the bench trial
in this case that Defendants--Maria Socorro-Cintron (President
of the Board); Awilda Vilches- Reyes (Secretary of the Board);
and Eddie Nieves, Mary Jo Gonzalez, Federico Cedo-Alzamora, and
Eusebio Cabanillas (Board members)--violated DiMarco's constitutional
right to equal protection of the law when they discriminated against
her based upon her heritage, ancestry, and/or national origin.
The following findings of fact and conclusions of law focus on
the compensatory damages to which DiMarco is entitled based on
Defendants' violation of her rights.
2. Prior to moving to Puerto Rico, DiMarco worked as a supervisor
in a New York hospital and later became co-owner of a liquor store
in New York; she owned two apartments in New York; she lived in
one and rented out the other. Trial Tr. at 5-7.
3. DiMarco first came to Puerto Rico on a visit in 1969; she
moved to the island in 1981. Trial Tr. at 7-8.
4. She sold her business and properties in New York and purchased
two apartments in the Condado area of San Juan between 1981 and
1984. Trial Tr. at 9, 15-16.
5. DiMarco took a course to prepare for the real estate license
exam in Puerto Rico and took the exam in October 1987. Trial Tr.
at 16-18.
6. The passing grade for the exam was a score of 70 out of
100; DiMarco was originally informed she failed with a score of
64.
*8 7. When DiMarco went with her attorney to the Puerto Rico
Department of Justice to identify some exam documents, an attorney
for the government threatened and intimidated her and told DiMarco's
attorney, "[y]our client isn't going to be able to fight
this case. We are going to break her financially." Trial
Tr. at 25-27. On a prior occasion, when she went to Defendants'
office to inquire about taking the exam again, she was informed
that the exam was no longer to be given in English because, "we
have to worry about our own people eating rice and beans."
Trial Tr. at 93.
8. Defendants violated DiMarco's right to Equal Protection
by using different questions in the English and Spanish versions
of the exam and by grading her exam unfairly; DiMarco actually
earned a passing score of 97. Trial Tr. at 24.
9. When the Court ordered Defendants to issue certificates
recognizing that Plaintiffs were licensed realtors, Defendants
issued her an identifiable certificate expressly noting on its
face that it had been issued by court order. The Court ordered
Defendants to rectify the situation, but even then Defendants
delayed issuing the certificate as ordered. DiMarco didn't actually
receive her certificate until August 1991, four years after the
exam and over a year after the Court had ordered Defendants to
respect DiMarco's right to equal protection.
10. In September 1992, DiMarco started practicing as a real
estate agent, procuring apartment sales and rentals in the Condado
area. DiMarco had been involved in the purchase and sale of real
estate in New York, but this was her first time working as a real
estate broker. Trial Tr. at 7, 30. Between September 1992 and
May 1993, DiMarco received commissions from a number of apartment
transactions totaling $23,891.00. Trial Tr. at 37-44, 60-61, 65-75.
11. DiMarco's tax returns for 1992 and 1993 reflect the above
total: the 1992 return with an adjusted gross income of $4,898.00
and the 1993 return with a gross income of $20,281.00 and an adjusted
gross income of $7,263.86. Trial Tr. at 49.
12. In the years DiMarco spent in Puerto Rico prior to receiving
her brokers license, she lived on savings derived from her New
York properties, her liquor store business, and a life insurance
policy. Trial Tr. at 118-130.
13. DiMarco should have mitigated her damages, particularly
loss of income, by seeking employment during the four years her
license was denied. The Court shall reduce DiMarco's lost-income
damages by half for failure to mitigate damages. See Figueroa-Rodriguez
v. Aquino, 863 F.2d 1037 (1st Cir.1988).
14. Taking into account DiMarco's total net income of $12,161.86
for 1992 and 1993, which she earned over an eight month period,
the Court finds that DiMarco's yearly income would have been $18,242.76.
DiMarco's income over the four years she was denied the license,
reduced by 50% for her failure to mitigate, plus 8% interest,
is $39,404.43. Thus, the Court finds that DiMarco should receive
$39,404.43 for lost income. [FN11]
*9 15. DiMarco suffered mental anguish during her entire ordeal,
which has lasted now for nearly ten years: she felt unhappy, unwanted,
and maligned in Puerto Rico; she felt that Defendants had destroyed
her dream of living in Puerto Rico and doing business in real
estate; and she could not believe such an injustice could occur
in a place under the U.S. flag. Trial Tr. at 94-97. The Court
finds that DiMarco should also receive $50,000.00 in damages for
mental and emotional suffering.
16. Thus, Defendants owe DiMarco compensatory damages in the
amount of $89,404.43.
IV. PUNITIVE DAMAGES
[6][7] In an action under 42 U.S.C. § 1983, punitive damages
are available where a "defendant's conduct is shown to be
motivated by evil motive or intent, or when it involves reckless
or callous indifference to the federally protected rights of others"
Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632
(1983); Hernandez-Tirado v. Artau, 874 F.2d 866, 868 (1st Cir.1989).
It would be difficult to find a better example of callous indifference
to federally protected rights than the wilful mistreatment of
persons based on their heritage. Likewise, the Court can think
of no act more deserving of deterrence under § 1983 than
bigotry of the type displayed by Defendants in this case. See
Smith, 461 U.S. at 49, 103 S.Ct. 1625 ("deterrence of future
egregious conduct is a primary purpose of both § 1983 [citations
omitted] and of punitive damages [citations omitted]").
Defendants discriminated against DiMarco because they did not
believe English- speaking continental Americans should work in
Puerto Rico and take away jobs from Puerto Ricans. Defendants
informed DiMarco that government officials had to ensure their
own people would have rice and beans, i.e. that non-locals could
be discriminated against in favor of locals in the real estate
business. [FN12] This is precisely the type of conduct that our
society "will not tolerate" and which punitive damages
were designed to address. Hernandez- Tirado, 874 F.2d at 869-70.
All citizens, regardless of race, ancestry, heritage, or national
origin, are entitled to equal protection of the laws. Puerto Ricans
should be especially sensitive to the type of discrimination exhibited
by Defendants in this case, as many Spanish-speaking Puerto Rican
Americans have, as United States citizens, moved to the continental
United States from Puerto Rico, rightfully expecting to receive
equal treatment as citizens wherever they settle. Likewise, continental
Americans must be permitted to enjoy the same liberty to travel
and live in Puerto Rico without facing governmental discrimination
that Puerto Rican Americans have to travel and live in the fifty
states. Any attempts to prevent migration in either direction
must be dissuaded, and punitive damages in suits such as this
will go a long way toward achieving that goal. For these reasons,
punitive damages are clearly appropriate in this case.
Defendants argue, however, that punitive damages would be unfair
in this case because the behavior underlying this case resulted
from the policies of another administration. Defendants argue
that no further deterrence is needed because the discriminatory
conduct occurred during a past Popular Democratic Party administration
and that the current party in power, the New Progressive Party,
believes in and enforces a policy built on the equality of all
U.S. citizens. But, with respect to deterrence, the fact that
the present administration has adopted a policy in compliance
with the Equal Protection Clause provides no guarantee that present
governmental policies will remain static--perhaps not all future
administrations will espouse the same philosophical bent regarding
continental Americans. In other words, Defendants' deterrence
arguments fails to account for the continuing deterrent effect
of punitive damages. Moreover, Defendants' argument misunderstands
the dual function of exemplary damages-- deterrence is only part
of the goal. The word "punitive" makes the second goal
of "punitive" damages obvious: they are also used to
punish the wrongdoer. So even if deterrence were not served by
the award of exemplary damages in this case (a conclusion the
Court does not share with Defendants), punitive damages would
nevertheless be warranted. Evidently the policy and philosophy
of this administration in the particulars herein discussed is
different from that of the administration in power at the time
of the occurrence of the facts subject of this case. The Judgment
herein is against the defendants. The government is not a party-defendant.
Whether the present administration is going to cover the obligation
of the defendants and pay on their behalf this Judgment is a matter
that must be settled administratively. In sum, the award of exemplary
damages will serve both to punish Defendants and to deter similar
future conduct by warning that discrimination against continental
Americans in Puerto Rico is unacceptable. The Court finds that
Defendants' repeated violation of Plaintiffs' constitutionally
protected rights warrants an award of $50,000.00 in punitive damages.
V. ATTORNEY'S FEES
*10 Title 42 U.S.C. § 1988(b) states that in federal civil
rights actions "the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney's
fee as part of the costs ..." The U.S. Supreme Court has
limited a court's discretion in applying § 1988(b), stating:
[t]he purpose of § 1988 is to ensure 'effective access
to the judicial process' for persons with civil rights grievances
[and] a prevailing plaintiff 'should ordinarily recover an attorney's
fee unless special circumstances render such an award unjust.'
Blanchard v. Bergeron, 489 U.S. 87, 89 n. 1, 109 S.Ct. 939,
103 L.Ed.2d 67 (1989) (quoting Newman v. Piggie Park Enterprises,
Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968)).
In Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933,
76 L.Ed.2d 40 (1983), the Supreme Court established that the
amount of the fee must be determined by the facts of each case
using the lodestar method. See Coutin v. Young & Rubicam P.R.,
Inc., 124 F.3d 331, 337 (1st Cir.1997). Under the lodestar method,
the Court must first multiply the amount of hours reasonably expended
by each attorney by the attorney's reasonable hourly rate. Coutin,
124 F.3d at 337. After determining the lodestar, the Court may
then take into consideration such factors as (1) the success achieved
and the results obtained by the plaintiff's attorney with respect
to each of plaintiff's claims, (2) time spent on unsuccessful
endeavors, (3) excessive and/or reproductive expenditures of time,
and/or (4) the reasonableness of the attorney's billing rate.
Id.
The various attorneys [FN13] who have represented DiMarco during
this litigation have supplied billing sheets and reasonable hourly
rates. [FN14] Attorney Aponte Pares billed DiMarco $15,462.50
for his services, which included just over one hundred and three
hours of his time. DiMarco paid Aponte Pares' bill in full and
seeks full reimbursement. DiMarco also seeks $10,850.00 for the
work of Jane Becker, who spent just over fifty-four hours working
on the case. Finally, DiMarco seeks $2,737.50 for the labor of
Melvin Rosario Rodriguez, who spent just over eighteen hours working
on the case. The total requested under § 1988(b) equals $29,050.00.
The Court finds the sums sought by DiMarco for attorneys' fees
to be completely reasonable, and hereby GRANTS DiMarco's request
for fees in the amount of $29,050.00.
Defendants have raised several arguments against DiMarco's
petition for attorneys' fees, but the Court finds them unpersuasive.
First, Defendants assert that the fees associated with the Court's
injunction were not requested in a timely manner under Local Rule
332, and therefore should be barred. Local Rule requires that
attorneys' fees petitions "be filed within forty-five days
following entry of judgment," barring an extension of time.
Defendant asserts that the Court's judgment ordering Defendants
to issue Plaintiffs' certificates constituted the judgment referenced
by Rule 332. However, that was not the final judgment in this
case. Harris, 20 F.3d at 511-12. The Court will not hold that
Rule 332 requires the filing of piecemeal attorneys' fees petitions
at the end of any stage of litigation. Awaiting the final judgment
is not only perfectly acceptable, it is preferable, so that the
Court may address the issue of attorneys' fees in one, fell swoop.
Requiring the type of scattered attorneys' fees litigation at
the end of every claim, as Defendants' argument necessarily envisions,
would be an inefficient waste of time in almost every case. The
absurd length of this case is anomalous and should not be used
to justify a rule that would generally prove unwieldy.
*11 Defendant also asserts that DiMarco's attorneys' bill for
services rendered between May 24, 1991 and August 21, 1992 should
be barred under the doctrine of laches. For the same reasons outlined
above, Defendants' laches argument has no merit. Again, the unusual
length of this litigation was not the fault of Plaintiffs and
should not be used to justify a rule different from that applied
to other cases. Local Rules permit the filing of attorneys' fees
petitions within forty-five days of the entry of judgment. DiMarco's
petition is timely.
Third, Defendants assert that they are protected by qualified
immunity from attorneys' fees. That argument has been rendered
moot by the Court's analysis of Defendants' qualified immunity
defense, supra.
Next, Defendants argue that DiMarco's fee petition with respect
to hours spent litigating the damages phase of the case is premature
under Federal Rule of Civil Procedure 54(d)(2)(B). [FN15] Normally,
the Court might agree. But in this case, requiring DiMarco to
re-file her petition after the entry of this judgment would waste
everyone's time and provide no benefit. Defendants have known
for a long time that Plaintiffs successfully litigated this case;
they have had ample opportunity to oppose DiMarco's petition for
attorneys' fees; and they have not been prejudiced by DiMarco's
decision to file their petition prior to the issuance of the Court's
judgment.
Next, Defendants assert that Plaintiffs' attorneys' efforts
have not always met with success. The Court disagrees. DiMarco
sought and obtained (1) injunctive relief forcing the Board to
give the real estate exam in English and Spanish, (2) the issuance
of DiMarco's real estate brokers license and the re- issuance
of the certificate without extraneous notations regarding the
Court's Order, and (3) damages. The Court cannot envision a more
successful end to Plaintiffs' case. In cases "[w]here a plaintiff
has obtained excellent results, his attorney should recover a
fully compensatory fee [which] will encompass all hours reasonably
expended on the litigation ..." Hensley, 461 U.S. at 435,
103 S.Ct. 1933.
Finally, Defendants argue that the "unnecessary and duplicative"
efforts by Attorney Melvin Rosario added nothing to Attorney Becker's
work in this case. Again, the Court cannot agree:
Time spent by two attorneys on the same general task is not,
however, per se duplicative. Careful preparation often requires
collaboration and rehearsal, and the court should not reward
defendants for their vehement "Stalingrad defense,"
... Indeed, because a litigant's staffing need and preparation
time will often vary in direct proportion to the ferocity of
her adversaries' handling of the case, this factor weighs heavily
in the balance.
Rodriguez-Hernandez v. Miranda-Velez,132 F.3d 848, 860 (1st
Cir.1998). As the defense in the case at bar was certainly vigorous,
the Court finds it reasonable that attorney Rosario assisted in
the litigation of this case. There is no evidence that his work
was unnecessary and/or duplicative.
VI. THE ISSUE OF CULTURE
AS RELATED TO DEFENDANT'S ALLEGATIONS
*12 The facts of this unfortunate case and the arguments presented
by the parties raise a number of socially and politically important
issues. The Court feels compelled to address one in particular--a
matter concerning the culture of the Puerto Ricans vis-a-vis Latin
American culture. That issue is of particular importance in light
of Defendants' attorney's argument that the present administration,
whose policies and views on status differ from those of the administration
in power at the time the constitutional violations giving rise
to this case occurred, should not be punished for the former administration's
"bungling." See supra.
The specific matter to which the Court is referring, although
probably not truly susceptible to such succinct summarization,
has frequently been described as a question of culture. The party
in charge during the former administration, the Popular Democratic
Party ("PDP"), opposes Puerto Rico becoming a state.
The PDP justifies its position in large measure on the perceived
notion that Puerto Rico's is a "Latin American" culture,
distinguishable from and therefore somehow incompatible with U.S.
culture. The present administration on the other hand, that of
the New Progressive Party, believes that Puerto Rico and its citizens
have embraced and share the culture of the United States. To some
degree this schism reflects divergent views of the meaning of
the word "culture" and to some degree it reflects differing
notions of both Latin American culture and U.S. culture. In any
case, the Court finds the treatment afforded Plaintiffs in this
case by employees of the Puerto Rico government to be a reflection
of the ideology espoused by the PDP. It is an ideology that creates
an "us" and "them" view (which often translates
to an "us" versus "them" view) of continental
Americans in Puerto Rico. The dangers of that ideology are on
full display in this case. In the view of the undersigned judge,
it is an ideology premised on a misunderstanding of what culture
means and of what Puerto Rican and U.S. "culture" are.
Culture is an elusive concept, but taken in the context of
the issue at hand-- i.e., Puerto Rico's political status--the
Court considers that the relevant inquiry must be one of political
culture. Aspects of ethnic, linguistic, religious, or popular
culture are not fundamental, and are indeed irrelevant to the
matter of Puerto Rico's status vis a vis the United States. That
is so for several related reasons. First of all, such classifications
simply do not adequately define the people of either Puerto Rico
or the United States. The people of both comprise many so-called
cultures. To classify all Puerto Ricans as Spanish or Catholic
or to say that they all eat rice and beans and dance salsa would
be both ludicrous and insulting. What about Puerto Ricans of Chinese
descent, or English, or Corsican, or African, or North American?
Are they less Puerto Rican than those whose great-grandfathers
come from Valencia or Madrid? Clearly not. Likewise, the United
States is perhaps the greatest conglomeration of cultures ever
assembled under a single government. Although often given the
moniker, "melting pot," the United States is perhaps
better described as a mixing bowl, a place where many "cultural"
elements coexist to form a whole without losing their individual
flavors. Cultural diversity is part of the essence of the nation,
and no single ethnic, religious, linguistic, or social characteristics
can define its citizens. A second, related reason why we must
focus on political culture, as opposed to a culture defined by
other criteria, is that in both Puerto Rico and the United States
classifications based on such criteria are considered wrong, both
morally and legally. Indeed, such classifications are wrong precisely
because they do not work. While the United States' record regarding
the majority's (particularly with respect to race and ethnicity)
treatment of minorities is far from unblemished, the nation as
a whole has generally strived to rise above such classifications,
especially during the last century. The people of Puerto Rico
have similarly denounced classifications based on race, ethnicity,
religion, and the like.
*13 Other aspects of so- called culture--the food we eat, the
music we listen to, the holidays we celebrate--in addition to
being insufficient bases for fully describing either Puerto Rican
or U.S. culture, are simply not significant to the question of
status. Would becoming a state prevent Puerto Ricans from enjoying
pasteles or arroz con gandules at Christmas time or from dancing
salsa or merengue ? Has living in the United States prevented
Irish- American Catholics from celebrating St. Patrick's Day or
Jewish-Americans from observing Passover and Yom Kippur? Have
Chinese-Americans not maintained their Chinatowns and Italian
Americans their Little Italies? More importantly, are there not
more relevant factors to consider in analyzing political status,
like economic opportunity, political stability, and a strong national
belief in the protection of individual liberties.
In an attempt to support the cultural incompatibility argument
against statehood without offending our sensitivities regarding
cultural diversity, some commentators have attempted to define
culture in more subtle ways. For example, Mayra Montero recently
wrote an article, entitled "La Luz del Espiritu," for
her weekly column in El Nuevo Dia, in which she attempted
to correlate nationality with cultural idiosyncrasies. Mayra Montero,
Primer Plano: La Luz del Espiritu, El Nuevo Dia, July 26, 1998,
at 11. Although certainly better written than most, [FN16] her
article typifies efforts of like-minded anti-statehood advocates.
She argues that nationality cannot be rejected or "changed
like a shirt;" if it could, the Berlin wall would never have
come down and the players of the Croatian soccer team would be
playing for Yugoslavia. Untrue. Nationality can be changed. Clearly,
on an individual level, people emigrate all the time. How many
Cubans and Dominicans have moved to Puerto Rico this century?
Do these people universally remain Cuban or Dominican at heart,
or do some grow to feel more Puerto Rican? Do none of these emigres
seek U.S. citizenship, and of those that attain it, do none feel
pride in their new status? What about their children, who are
raised as U.S. citizens in Puerto Rico? Are they bound to retain
the nationalities their parents were born with? Even rudimentary
consideration of her position demonstrates its fallacy, at feast
with respect to individuals. But beyond the individual level,
whole communities can change nationalities. Throughout history,
nations have assimilated into other nations of their own free
will. Consider Hawaii. Consider the unifications of Italy and
of Greece. The examples Ms. Montero uses are of a nation forced
to split and a nation forced to join, not of their own free will,
but by the will of others. East and West Germany were split by
Germany's enemies as a result of Germany's defeat in World War
II; Yugoslavia was formed into a federal republic, also following
World War II, under Russian control. Those examples teach nothing
about political unification made of the free will of the people.
*14 Next, Ms. Montero argues that nationality derives from
being born, growing up, and maturing in a place in common; from
a shared way of laughing, crying, suffering, celebrating; from
familiar ideas and dreams; from a common form of expression, both
verbal and symbolic; all of which come not only from our experiences,
but from those of our progenitors. But even if Puerto Rico could
be described as a bundle of standard idiosyncrasies--a notion
that seems both unlikely and cruelly unfair to those Puerto Ricans
who do not share them-- can such idiosyncrasies rightfully form
the basis of nationality? Even if such stereotyping were morally
permissible, are the people of Puerto Rico so narrow- minded as
to reject political union with those who do not share such shibboleths.
Has the example of the United States not taught the world that
a multicultural society is a national asset, not a basis for separation?
Is the attitude professed by Ms. Montero not, to some degree,
the same that has motivated "ethnic cleansing" in the
republics of the former Yugoslavia and in.several African nations?
And at what point does it end? People from San Juan have their
own eccentricities apart from those of people from Ponce who in
turn do not share all such mannerisms with the people of Isabela,
and so on. Even within San Juan, those who grow up in Punta Las
Marias probably will not communicate with one another exactly
the same way as those who grow up in Miramar or Old San Juan or
Stop 20. By Ms. Montero's reasoning, each municipality, or even
each neighborhood, comprises a nation unto itself. Perhaps this
is hyperbole, but the Court only wishes to demonstrate the error
of equating such characteristics with the concept of nationality.
The undersigned judge holds the more enlightened view to be one
encouraging people to strive to attain mutual political goals
while accepting, learning from, and embracing different ways of
laughing, crying, and celebrating, sharing the dreams of others,
and learning to communicate in other languages.
In the end, the culture that matters, that describes the way
in which people must be compatible in order for political union
between them to be possible, is political culture; that is, we
must focus on political culture when assessing the cultural compatibility
of Puerto Rico and the United States.
Even a brief analysis of political culture reveals that Puerto
Rico is more akin to the United States than to its Latin neighbors.
[FN17] The political history of Latin America is one of dictatorship
and its concomitant evils, corruption and civil war. Deriving
from the notion of caudillismo--the distinctly Spanish philosophy
of the ordering of man and his universe under which the individual's
ego is so strong that it preempts broader concepts like community
or nation--Latin American political systems have been little more
than personality cults paying homage to political leaders, from
the conquistadors, like Pizarro and Cortes, to the leaders of
independence, like Bolivar and Hidalgo, to more recent heirs to
power like Santa Ana, Peron, Castro, and Pinochet. Under political
systems based on caudillismo, the governed in Latin American have
placed less importance on ideals like liberty and justice than
in the leader who is to incarnate those ideals. And the governing
dictators have, also in the spirit of caudillismo, emphasized
political separation over unity as a means of distinguishing and
aggrandizing their personae. Employing personalistic political
systems and elevating men over ideas have led to, in contrast
to the United States, nations of men, not laws. Witness Simon
Bolivar's message to the Bolivian congress, in which he lobbied
for the life-term presidency, and thus the legitimization of caudillismo:
*15 The President of the Republic shall come to be in our
constitution like the sun, fixed in this center, giving life
to the universe. This supreme authority ought to be perpetual,
because in those systems without hierarchies there must be, more
than in others, a fixed point around which the magistrates, the
citizens, and all the elements may revolve. Give me a fixed point,
says the ancient, and I will move the Earth.
Notwithstanding the fact that U.S.-style constitutions have
been adopted throughout Latin America, few Latin American leaders
have felt themselves bound by any constitutional restraints. The
result is a national history filled with poverty, suffering, repression,
corruption, sycophancy, torture, assassination, and death in the
field of battle. Ironically, this result was accurately predicted
by Bolivar himself when, commenting on the break-up of Greater
Columbia, he said, "this country will fall into the hands
of the rabble and then pass to the hands of lesser, ruffian tyrants."
[FN18]
In the United States, on the other hand, we have struggled
to ensure that both the letter and spirit of our Constitution,
and especially the guarantees of individual liberty contained
in the Bill of Rights, have been upheld and left unmolested by
the government. While we have not won every battle, as various
unhappy chapters in U.S. history attest, we continue to win the
war and the United States remains a bastion of liberty, justice,
and opportunity.
The tenets of our political system are well-known and much
imitated--it is a government of "we the people," by
"we the people," and for "we the people."
The people have retained the power by limiting that of the government.
First, the Constitution enumerates the powers of the national
government, establishing a federal system under which the individual
states, within their jurisdictions, both share concurrent authority
with the national government and enjoy powers not given the national
government. Second, the enumerated powers of the national government
are divided amongst the legislative, the judicial, and the executive
branches. By that system of checks and balances, our founding
fathers ensured that those who might have in mind dictatorial
authority within the national government would be hobbled in any
attempt to consolidate power. Third, and perhaps most importantly,
the Constitution ensures that certain individual liberties may
not be infringed upon by either the national or, via the Fourteenth
Amendment, the state governments. These individual liberties,
aside from abridging the governments' ability to impose upon individual
citizens--e.g., by protecting freedom of religion, prohibiting
the quartering of troops and the taking property for public use
without compensation, and guaranteeing due process of law--enhance
the citizenry's ability to police the government--e.g., by protecting
speech, press, the right to assemble, and the right to bear arms.
Under this system, the citizens of the United States have the
right to pursue the ends they desire, subject only to the laws
created by those they elect, whose powers are cabined as described
by the Constitution. It is a reflection of our founding fathers'
philosophy, engendered in every U.S. citizen, and perhaps best
expressed by Abraham Lincoln, that "no man is good enough
to govern another without that other's consent," in stark
contrast to Simon Bolivar's philosophy of the "King Sun"
quoted hereinbefore.
*16 Puerto Rico, discovered by Columbus during his second
voyage in 1493, remained a Spanish colony until 1898. Because
Puerto Rico continued under Spanish rule, it was spared the anarchy
that followed independence in most Latin American nations during
the nineteenth century. In 1898, following the Spanish- American
war, Puerto Rico was ceded to the United States. Since the signing
of the Treaty of Paris brought the war to its end, Puerto Rico
has remained a U.S. territory and its inhabitants have lived under
the Constitution of the United States of America. During that
time, Puerto Rico and its people have come to embrace the United
States Constitution and, in particular, the individual liberties
protected by the Bill of Rights. As a result, Puerto Rico has
broken, culturally, from its Latin roots over the last one hundred
years.
Comparisons illustrate that fact: while the people of Venezuela
have lived under the heels of various dictators, the U.S. citizens
of Puerto Rico have enjoyed due process of the law and equal protection
thereunder; while the mothers of desaparecidos wailed in the Buenos
Aires' plaza, protesting the killing of their sons and daughters
by the ruling junta, the U.S. citizens of Puerto Rico have freely
elected their governors, replacing four different administrations
since 1968. While communist guerrillas were plundering Nicaragua
following the reign of terror of a murderous dictator, young men
from Lares, Fajardo, Yauco, and Rincon, fighting as part of the
United States military alongside their brothers-in-arms from Baltimore,
Peoria, and Salt Lake City, have protected the world from Hitler,
Ho Chi Minh, Saddam Hussein, and others who would threaten the
principals of freedom embodied in the Bill of Rights; while Jesuit
priests were murdered in Central America for attempting to disseminate
ideas about personal liberty, U.S. citizens from Aguadilla, San
Lorenzo, and Humacao, availing themselves of the right to free
speech protected by the First Amendment, have expressed their
views without fear; while the poor and downtrodden throughout
Latin America have lived without hope of bettering their lot in
life as some of their leaders plundered their nations of resources
and wealth, the U.S. citizens of Puerto Rico have lived in hope
and security as part of a nation that, as Franklin D. Roosevelt
put it, judges its progress not by "whether we add more to
the abundance of those who have much, [but by] whether we provide
enough for those who have too little."
Perhaps the most telling comparison is between Puerto Rico
and Cuba, two Caribbean islands with nearly identical histories
up until the signing of the Treaty of Paris, when Cuba became
independent and Puerto Rico became a U.S. territory. Since 1898,
Cuba, without benefit of the United States Constitution, has wallowed
in poverty and corruption, mostly under dictatorial rule. Throughout
this century Cubans have fled by the thousands to Puerto Rico
and other places in the United States seeking political and economic
freedom. [FN19] On the other hand, U.S. citizens throughout Puerto
Rico have prospered since the Treaty of Paris under the democratic-capitalist
system protected by the United States Constitution to achieve
a higher standard of living than any Latin American country, despite
having fewer natural resources than most. [FN20] Puerto Rico's
cultural ascent since becoming a part of the United States is
demonstrated in a recent article published in The San Juan Star
describing life in Puerto Rico at the end of the nineteenth century.
The article recounts the observations made by historian Henry
K. Carroll, special commissioner for the United States in Puerto
Rico, in his "Report on the Island of Puerto Rico; its Population,
Civil Government, Commerce, Industries, Productions, Roads, Tariff,
and Currency."
*17 To write the report, Carroll traveled the island, visiting
private homes, plantations, factories and anywhere else he could
get to in order to form not just a census portrait--the 1897
census was provided to him by autonomist leader Luis Munoz Rivera--but
to get a sense of the island as a whole.
What he found was a population that was often living in squalor,
many dying of "starvation of the slow kind which gradually
saps the strength, weakens the willpower and prepares the way
for disease."
Natalia de Cuba, Life in Late 19th Century Puerto Rico was
Tough, The San Juan Star, July 25, 1998, at 7.
De Cuba's article gathers in some detail the hardship Puerto
Ricans living on the island confronted on the eve of the twentieth
century, in areas such as labor, housing, and education. As narrated
by its author, the mass of the Puerto Rican workforce earned far
below living wages and did not enjoy the protection of labor laws,
which were virtually nonexistent. They lived in sub- standard
housing and confronted soaring rates of illiteracy. "Carroll
estimated that 80-85 percent of the population was illiterate...."
Id. Notwithstanding these conditions, Carroll considered the populace
to be full of untapped potential. "Porto Ricans have had
little opportunity to show their capacity," he wrote. Id.
Things in Puerto Rico have obviously changed for the better since
the island was ceded to the United States; in Cuba they have not.
Indeed, anyone wishing to see today conditions similar to those
described by Mr. Carroll in 1899 can find them throughout Latin
America. It is the espousal of the U.S. political culture that
finally provided Puerto Ricans with the "opportunity to show
their capacity"--an opportunity that the people of Cuba and
the other nations of Latin America have not been given, at least
not nearly to the extent the U.S. citizens of Puerto Rico have.
Perhaps culture is best defined as how people act and think
in their everyday endeavors. In Puerto Rico, where the United
States Constitution has provided the framework for the way of
life for one hundred years, the people have become accustomed
to thinking and acting freely, knowing they are at liberty to
do so. In Puerto Rico, the people move in an atmosphere of their
own creation as free men under a government to which they have
delegated a limited power to govern; they live in a culture of
personal freedom. That culture of freedom has nothing in common
with any so-called Latin American culture and everything in common
with the culture of the United States. In sum, the ideology which
encouraged the Defendants to discriminate against Plaintiffs in
this case, and any ideology premised on the notion that Puerto
Rico's is a Latin American culture incompatible with U.S. culture,
misunderstands both the meaning of the culture at issue and the
true nature of both Latin American culture and the culture of
the United States.
VII. CONCLUSION
The Court hereby ENTERS JUDGMENT for
Plaintiff, Joanna DiMarco, to have and recover and to be
paid jointly and severally from codefendants Maria Socorro- Cintron,
Awilda Vilches-Reyes, and Eddie Nieves, Mary Jo Gonzalez, Federico
Cedo-Alzamora, and Eusebio Cabanillas the sum of One Hundred Sixty-Eight
Thousand Four Hundred Fifty-Four Dollars and Forty-Three Cents
($168,454.43). Said amount includes $89,404.43 for compensatory
damages, including mental and emotional suffering, $50,000.00
for punitive damages, and $29,050.00, for attorney's fees plus
costs and interests.
*18 IT IS SO ORDERED, ADJUDGED, AND
DECREED.
FN1. DiMarco's coplaintiff, John Fulcher Harris, is no longer
a party to this case. The Court will use the term "Plaintiffs"
when referring to both DiMarco and Harris, but will simply use
her name when referring to DiMarco only.
FN2. In 1987, Puerto Rico recognized both English and Spanish
as official languages:
In all the departments of the Commonwealth Government and in all
the courts of this island, and in all public offices the English
language and the Spanish language shall be used indiscriminately;
and, when necessary, translations and oral interpretations shall
be made from one language to the other so that all parties interested
may understand any proceeding or communication made therein.
P.R. Laws Ann. tit. 1 § 51 (1991 supp.). In April 1991,
the Puerto Rico legislature repealed § 51 and established
Spanish as the only official language of Puerto Rico.1991 P.R.
Laws Act No. 4. In January 1993, however, the legislature repealed
Act No. 4 and once again instituted a dual official language
scheme:
Spanish and English are established as the official languages
of the government of Puerto Rico. Both may be used indistinctly
in all departments, municipalities, or other political subdivisions,
agencies, public corporations, offices, or governmental dependencies
of the executive, legislative, and judicial branches of the Commonwealth
of Puerto Rico, pursuant to §§ 59-59f of this title,
or as provided by special law.
P.R. Laws Ann. tit. 1 § 59.
FN3. "Puerto Rico is subject to the .... equal protection
guarantees of either the Fifth or the Fourteenth Amendment."
Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 478
U.S. 328, 331 n. 1, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986) (citing
Examining Bd. v. Flores de Otero, 426 U.S. 572, 599-601, 96 S.Ct.
2264, 49 L.Ed.2d 65 (1976)). In either case, our analysis will
be the same. Hereinafter, when referring to the Equal Protection
Clause or the Fourteenth Amendment, the Court understands that
the Fifth Amendment may or may not be applicable.
FN4. Both Harris' Complaint and Harris' and DiMarco's Amended
Complaint named as Defendants: Hector Rivera-Cruz (Puerto Rico
Secretary of Justice), Maria Socorro-Cintron (President of the
Board), Awilda Vilches-Reyes (Secretary of the Board), and Eddie
Nieves, Mary Jo Gonzalez, Federico Cedo-Alzamora, and Eusebio
Cabanillas (Board members). The Court dismissed the complaint
against Hector Rivera-Cruz in its Judgment of March 9, 1990 (docket
No. 88).
FN5. The phrase, "DADA POR ORDEN DEL TRIBUNAL FECHADA
EL 19 DE ABRIL DE 1991" was written on the face of the certificate
issued to DiMarco.
FN6. By this time, John Fulcher Harris had dropped from the
case, probably because he was fed up with the absurd length of
this litigation, a problem caused, for the most part, by Defendants'
dilatory litigation tactics.
FN7. The Court makes no comment on the constitutionality of
Defendants' unwillingness to administer the test in English.
FN8. Ironically, this beautifully expressed sentiment comes
from the Court's now infamous and discredited opinion in Hirabayashi
v. United States, 320 U.S. at 100, 63 S.Ct. 1375 upholding the
imposition of a curfew on Japanese Americans during World War
II.
FN9. See generally Luis Davila Colon, The Blood Tax, 40 Rev.
Col. Abog. P.R. 603, 619 (1979) (discussing the Puerto Rican contribution
to the United States war efforts).
FN10. Theoretically, if such a classification could withstand
strict scrutiny, it would not violate the Equal Protection Clause.
But in reality, it is extremely unlikely that any such classification
could be justified under strict scrutiny. See Missouri v. Jenkins,
515 U.S. 70, 121, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (strictest
scrutiny has been automatically fatal in every instance the Court
has applied, save for in Korematsu and Hirabayashi, two unusual,
war-time cases which have been discredited). Certainly, Defendants'
actions in this case cannot.
FN11. The Court used the following formula to calculate DiMarco's
compensatory damages:
(1) DiMarco's net income per month during the eight (8) months
she worked as a real estate broker, averaged out to one year (net
income/8 x 12),
(2) multiplied by four(4) (the number of years between the exam
and the time she was granted the license),
(3) divided by two (for DiMarco's failure to mitigate damages),
(4) plus 8% interest.
FN12. DiMarco was even threatened and intimidated by Defendants'
attorney, who told her she would not be able to fight this case
and that they were going to break her financially.
FN13. Attorney Arturo Aponte Pares initially served as DiMarco's
counsel in this action. DiMarco has paid him in full for his services.
Eventually, attorney Jane Becker of Troncoso & Becker took
over DiMarco's representation. Attorney Melvin Rosao Rodriguez
assisted Ms. Becker.
FN14. Mr. Aponte Pares bills at $150.00 per hour; Mr. Rosario
Rodriguez bills at $150.00 per hour; and Ms. Jane Becker bills
at $200.00 per hour. For the type of litigation involved in this
case, the experience of these attorneys, the nature and length
of this litigation and its consequent "undesirability,"
those rates are certainly not unreasonable Coutin, at 337-338
n. 3 (these factors come from the factors set forth in Johnson
v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir.1974)).
FN15. "Unless otherwise provided by statute or order of
the court, the motion must be filed and served no later than 14
days after entry of judgment." Fed.R.Civ.P. 54(d)(2)(B).
FN16. Mayra Montero is an exceptional, award-winning author.
Indeed, notwithstanding the different ideas the Court has pertaining
to her position on the issue at hand, I consider Ms. Montero to
be one of Puerto Rico's most talented writers. We respect her
historical perspectives, particularly considering the opinion
discussed by the outstanding Puerto Rican novelist, Rosario Ferre
in her book THE HOUSE IN THE LAGOON discussing the concept that
novelists are better historians than historians themselves.
FN17. The Court accepts the standard definition of Latin America
as comprising Spanish America and Brazil. See Webster's Third
New International Dictionary 1276 (1993).
FN18. Translated by the Court from the Spanish, "este
pais caerá en manos de la multitud desenfrenada para despúes
pasar a tiranzuelos." The Court's discussion of Latin American
culture is but a brief recitation of facts detailed more thoroughly
and ideas expressed more fully (and artfully) by various authors
in Dictatorship in Spanish America (Hugh Hamill, Jr., ed.1965)
and by Plinio Apuleyo Mendoza, et al. in Manual del Perfecto Idiota
Latinoamericano (1997). See also Paul H. Boeker, Lost Illusions:
Latin America's Struggle for Democracy, as Recounted by its Leaders
(1990).
FN19. This migration increased dramatically when Castro came
to power. The first wave of Cubans to immigrate to the United
States were mostly formerly wealthy, well-educated Cubans in self-imposed
"exile," displaying their anti-dictatorial stance. Since
that initial exodus, however, Cubans of all walks of life have
continued to migrate to the United States in search of a better
way of life. The influx of Cubans has generally proven a mighty
asset to the United States. If there is no political freedom,
there can be no economic freedom where individuals can develop
their innate abilities. That is why the United States main claim
to glory is not predicated upon the powerhouse of Wall Street
but the Bill of Rights that protected the rights of citizens in
a free society which created society of equals devoid of the caste
system and made possible a Wall Street and the American Dream.
FN20. The Court believes that economic culture is, if not part
and parcel of political culture, at least a reflection of political
culture.
END OF DOCUMENT
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