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Opposition To Intervention
Opposition To Intervention
Opposition To Intervention
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No. 14-2184
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
__________________________________________________________________
ADA MERCEDES CONDE VIDAL; MARITZA LPEZ AVILS; IRIS
DELIA RIVERA RIVERA; JOS A. TORRUELLAS IGLESIAS; THOMAS
J. ROBINSON; ZULMA OLIVERAS VEGA; YOLANDA ARROYO
PIZARRO; JOHANNE VLEZ GARCA; FAVIOLA MELNDEZ
RODRGUEZ; PUERTO RICO PARA TOD@S;
IVONNE LVAREZ VLEZ
Plaintiffs - Appellants
v.
DR. ANA RIUS ARMENDRIZ, in her official capacity as Secretary of the
Health Department of the Commonwealth of Puerto Rico;
WANDA LLOVET DAZ, in her official capacity as the Director of the
Commonwealth of Puerto Rico Registrar of Vital Records;
ALEJANDRO J. GARCA PADILLA, in his official capacity as Governor of
the Commonwealth of Puerto Rico; JUAN C. ZARAGOZA GMEZ, in his
official capacity as Director of the Treasury in Puerto Rico
Defendants Appellees
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I. BACKGROUND
On January 26, 2015, accepted on January 28, 2015, Appellants filed their
Principal Brief. Numerous amicus curiae briefs were filed soon after Appellants
filed their brief on appeal. On March 20, 2015, accepted on March 24, 2015,
Appellees filed their Response Brief. In their brief, the appearing Appellees stated
that they could no longer defend the Constitutionality of Article 68 of the Puerto
Rico Civil Code which states that [m]arriage is a civil institution . . . whereby a
man and a woman mutually agree to become husband and wife. . . . Any marriage
between persons of the same sex or transsexuals contracted in other jurisdictions
shall not be valid . . . .
On March 25, 2015, a group of senators and representatives -- eight (8)
senators and four (4) representatives--, in their individual capacities (hereinafter
movants), filed a motion for leave to file an amicus brief in support of the
judgment issued by the District Court upholding the constitutionality of Article 68
of the Puerto Rico Civil Code. On March 30, 2015, this Court denied movants
request to file an amicus brief stating:
The motion for leave to file an amicus brief filed by
Senators Angel Ramon Martinez-Santiago, Jose PerezRosa, Luis Daniel Rivera-Filomeno, Pedro RodriguezGonzalez along with additional senators and
representatives of the Legislative Assembly of Puerto
Rico is denied without prejudice for failure to submit
a proposed amicus brief. See Fed. R. App. P. 29(b)
(providing that motion be accompanied by the proposed
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required to reopen the briefing stage of this appeal which has since concluded. We
respectfully posit that movants have not placed the Court in the position of
deserving additional considerations when the parties and the amici complied with
the timeline of the appeal.
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B.
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Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982); see
also Mangual, 317 F.3d at 56.
In what is relevant to movants request to intervene, the Supreme Court has
developed a specialized set of standing rules to govern cases in which a legislator
seeks either to assert or to defend claims addressing either the constitutionality of a
law or the legality of executive action.
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Proposed Brief at 7. Taken out of context, that statement would appear to permit
congressional intervention in any case in which the Attorney General declines to
defend the constitutionality of a federal statute.
narrower and it is not enough for individual legislators to posit that the Executive
Branch has failed to defend the constitutionality of a given statute.
In fact, the Supreme Courts decisions in Raines, negates movants argument
as the Court declined to grant standing to legislators such as movants who purport
to intervene as parties in federal litigation to pursue generalizes institutional
injuries or concerns. As a scholarly commentary posits: Chadha does not hold
that Congress may intervene to defend any challenged federal statute, and such a
holding would be irreconcilable with Raines, not to mention flatly at odds with the
exclusive grant of power to the Attorney General in 28 U.S.C. 516.
Hall, 80
Hollingsworth involved a
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To the extent that movants seek to protect enforcement of Article 68, it bears
noting that Appellants decision not to defend the statutes constitutionality does
not render said provision null, as the Executive Branch of the Commonwealth of
Puerto Rico will continue to enforce the statute, subject to a final decision by this
Honorable Court. Thus, current enforceability of the challenged Commonwealth
statute is not at issue and in any event, movants are not agents of the
Commonwealth and they therefore lack authority to assert state interests in this
case. Importantly, movants lack authority to expound the institutional or official
position of Puerto Ricos Legislative Assembly. They simply purport to intervene
in their individual capacities, drawing from the fact that they hold public office as
legislators in the Commonwealth.
Given the nature of movants claimed interest, we must underscore that
their request for intervention is not akin to the right to intervene granted to the
Bipartisan Legal Advisory Group of the House of Representatives (BLAG) in
Windsor v. United States, 133 S. Ct. 2675 (2013).
Windsor involved the constitutionality of the definition of marriage and
spouse provided by the Defense of Marriage Act (DOMA). While the suit was
pending, the Attorney General of the United States notified the Speaker of the
constitutionality of the initiative made law and noting Arizona committee and its
members were not elected representatives, finding the case moot by other events).
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This provision requires the Attorney General to report to the Congress any
instance in which the Department of Justice determines to refrain (on the grounds
that the provision is unconstitutional) from defending or asserting, in any judicial,
administrative, or other proceeding, the constitutionality of any provision of any
Federal statute, rule, regulation, program, policy, or other law, or not to appeal or
request review of any judicial, administrative, or other determination adversely
affecting the constitutionality of any such provision. 28 U.S.C. 530D.
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Since at least the early 1980s, the United States House of Representatives has
articulated its institutional position in litigation matters through BLAG; a five12
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represent the interests of the Commonwealths Legislative Assembly and they have
no authority to represent the legislature in judicial proceedings.
Given that movants have no legal authority to represent the Commonwealth
or its legislature, the only interest that they seek to pursue in this appeal falls
within the realm of a generalized stake in enforcement of Commonwealth law;
which interest fails to afford them a sufficient personal stake to conform with the
standing requirement. Pursuant to the Supreme Courts decisions in Raines and
Hollingsworth, movants, as individual legislators or citizens, lack standing to
intervene to defend the constitutionality of Article 68 of the Puerto Rico Civil
Code.
Commonwealth interests are adequately represented in this case by the
Department of Justice of the Commonwealth of Puerto Rico. And the Court has
been placed in a position to adjudicate this case drawing from the briefs filed by
member bipartisan leadership group. Since 1993, the House rules formally
acknowledge and refer to the Bipartisan Legal Advisory Group in connection with
its function of providing direction to the Office of the General Counsel.
Particularly, Rule II 8 of the Rules of the House of Representatives establishes the
Office of General Counsel, which serves the purpose of providing legal assistance
and representation to the House. This Rule also asserts that such legal assistance
and representation must be provided without regard to political affiliation. As
stated in Rule II 8, unless otherwise provided by the House, the BLAG speaks
for, and articulates the institutional position of, the House in all litigation
matters. Id. (emphasis ours).
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the parties, as well as the briefs filed by the amici, including those amici that were
granted leave to appear in support of the constitutionality of Article 68.
III.
CONCLUSION
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s/Margarita Mercado-Echegaray
MARGARITA MERCADO-ECHEGARAY
Solicitor General
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