Case: 12-2145

Document: 00116444980

Page: 1

Date Filed: 10/17/2012

Entry ID: 5683390

CASE NO.: 12-2145 IN UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT MYRNA COLN-MARRERO Plaintiff-Appellant VS. HCTOR J. CONTY-PREZ, et al Defendants-Appellees 12-CV-1749 CONSOLIDATED OPPOSITION TO EDWIN MUNDOS REQUEST FOR CLARIFICATION OF THE COURTS OCTOBER 11, 2012 ORDER AND FOR REHEARING EN BANC OF SAID ORDER TO HONORABLE COURT: COMES NOW defendant-appellee Eder Ortiz-Ortiz, in his official capacity as Electoral Commissioner for the Popular Democratic Party (hereinafter referred to as PDP), through the undersigned counsel and very respectfully SETS FORTH and PRAYS: I. INTRODUCTION

The above-captioned matter was called for oral argument last Thursday October 11, 2012. On that same date, this Honorable Court issued an order

holding that plaintiff-appellant had established likelihood of success in the merits and irreparable injury but that other factors of the inquiry required the development
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of a factual record, for which reason it tasked the District Court with holding an evidentiary hearing. The order at issue set forth the scope of the fact-finding inquiry in this case. The District Court held the requested evidentiary hearing, which extended from the 15th to the 16th day of October. In so doing, the District Court strictly adhered to this Honorable Courts October 11th order. Last night, apparently concerned about the effect of the evidence presented before the District Court, co-defendant Edwin Mundo-Ros (who opposes the enfranchisement of voters in plaintiffs situation), filed a tandem of very unorthodox requests, to wit: 1) a request to clarify the scope of the hearing, after the hearing has already been held; and 2) a request for en banc review of the October 11, 2012 order. We shall briefly address the reasons why the aforementioned motions lack any merit whatsoever. II.
A) THE MOTION TO CLARIFY

DISCUSSION

Faced with evidence that it is feasible to afford full participation in the upcoming election to the 330,902 voters who abstained from casting a ballot in the 2008 General Election, Mundo now attempts to restrict said right by seeking a modification of the October 11th order. In concrete terms, Mundo would have this Honorable Court find that the aforementioned voters may only be allowed to vote
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Document: 00116444980

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Date Filed: 10/17/2012

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for the federal office of Resident Commissioner. The first obvious question that comes to mind is: why was this not raised before this Honorable Court before the evidentiary hearing was held? It is also noteworthy that the pertinent agency itself (i.e., the Puerto Rico State Elections Commission), in all of its filings in this case has always approached this case as being about the full participation of the 330,902 disenfranchised voters. This is consistent with what has been the Commissions official policy regarding the rights of voters protected by federal statutes that, like the NVRA, address federal rather than state candidacies. This Honorable Court will soon have before it what was admitted by the District Court as Plaintiffs Exhibit 2, which is President Contys May 29, 2012 Resolution in Case Number CEE-RS-12-51, wherein it is held that service members who request absentee ballots under federal statutes based exclusively on the existence of a federal candidacy, have a right to vote on all four ballots (state, legislative, municipal and plebiscite), if they registered in person1. The Court will also have the transcript of President Contys testimony, wherein he admits that all of the 330,902 voters at issue registered in person. The basis of the Presidents analysis -which includes inquiries into HAVAis that Puerto Rico has a single voter registration system for both federal and local electoral processes. We will address this matter in greater depth in our

Service members may also register to vote through the Commissions web site.
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Supplemental Brief. However, it is plain that, were the Commission to apply a different rule of construction to voters asserting rights under the NVRA (which is predicated on the right to vote for candidates to federal office) than that which it has applied to voters asserting rights under UOCAVA (also predicated on the right to participate in federal elections) would constitute a blatant violation of plaintiffs equal protection rights. This discussion will be expanded in our supplemental brief, but we respectfully believe that the above stated is enough to deny Mundos collateral attack. B) EN BANC REVIEW In our many years of practice before this Honorable Court, we had never before seen a party attempt to pry a case from a panels hands after oral argument has been heard but before the panel has had the opportunity to decide the appeal2. Moreover, it is judgments issued by appellate panels, rather than interlocutory orders that are the fodder of en banc review. Fed. R. App. P. 35(c) provides that [a] petition for a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing. Consequently, we must go to Fed. R.
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Although it is seldom attempted, the rule does provide for a party to request that a matter be initially heard en banc. This is not the case here, as Mundo is attempting to bring the rest of the active judges of the Court into the fray at the very last stages of the proceedings before the panel. In any event, a petition to request that a matter be initially heard en banc must be made before appellees brief is due, a date that came and went weeks ago.
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Document: 00116444980

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Date Filed: 10/17/2012

Entry ID: 5683390

App. P. 40(a)(1), which provides in pertinent part that [u]nless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment (emphasis added). It is obvious that, there having been no judgment as of yet entered in the instant appeal, en banc review may not be requested at that time. To be sure, there will be a time in which the non-prevailing party, whoever such party may end up being, will be able to exercise his right to petition en banc review, however, such time is not yet upon us. Mundos attempt to hijack the instant case from the assigned panel must be denied. WHEREFORE it is respectfully requested from this Honorable Court that Mr. Mundos requests for clarification and for rehearing be hereby DENIED. CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that the instant document has been filed with the Courts CM/ECF System, which will simultaneously serve notice on all counsels of record (Carlos Del Valle-Cruz, Esq., Rafael E. Garca-Rodn, Esq., Carlos Hernndez-Lpez, Esq.; Jos L. Nieto-Mingo, Esq., David Indiano, Esq., Seth Erbe, Esq. and Nelson Crdova, Esq.) to their respective registered e-mail addresses. Any non-registered attorneys and/or parties will be served via regular mail.
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Entry ID: 5683390

In San Juan, Puerto Rico this 17th day of October, 2012. RESPECTFULLY SUBMITTED, PEDRO E. ORTIZ ALVAREZ, LLC P.O. Box 9009 Ponce, Puerto Rico 00732 Tel (787) 841-7575; 758-9356 Fax (787) 841-0000; 758-9243

/S/Jorge Martnez-Luciano JORGE MARTNEZ-LUCIANO USCA-1st Cir. No. 78539 e-mail: squalus@rocketmail.com /S/Pedro E. Ortiz lvarez PEDRO E. ORTIZ LVAREZ USCA-1st Cir. No. 5253 e-mail: pedro@poalaw.com /S/Emil Rodrguez-Escudero EMIL RODRGUEZ-ESCUDERO USCA-1st Cir. 117999 e-mail: emil@poapr.com