SAN JUAN, PUERTO RICO—Judges on the US Court of Appeals for the First Circuit last month traded their 13-story home base in Boston’s Seaport district for a Spanish style courthouse sandwiched between palm trees in the Caribbean.
San Juan in winter sounds like a nice getaway, and the judges hear that a lot. But the change of venue is tricky, the schedule is packed, and some Puerto Ricans—who can’t vote in presidential elections or access many government programs—remain torn over the US’s second-highest court system handling cases on the island.
The twice-yearly First Circuit sittings in San Juan, which have been going on for more than 70 years, “make palpable that Puerto Rico is part and parcel of the First Circuit even though we are separated by an ocean,” said Raúl M. Arias-Marxuach, chief judge of the US District Court for the District of Puerto Rico.
But members of El Colegio de Abogados de Puerto Rico, a local bar association, would prefer the federal court have no presence on the island, saying it subjects citizens to a legal system and language they view as foreign.
“There is tension,” acknowledges Senior First Circuit Judge Bruce Selya, who has made countless trips since he joined the court in 1986. “There is no question about it.”
‘A Moral Question’
While most federal laws apply here, Puerto Rico’s more than 3 million citizens are also bound by the territory’s own constitution. And some attorneys refuse to practice federal law to protest what they call the US government’s colonial power.
“The presence of the federal judiciary in Puerto Rico is really an imposition,” said Harry Anduze Montaño, a former president of El Colegio.
Ninety-five percent of Puerto Ricans don’t speak English at home, according to the Census Bureau. But English is used in the federal courts here. Jurors must be able to understand English to participate, creating juries that may be skewed to a more highly educated, wealthier population.
Fermín Arraiza, legal director for the ACLU of Puerto Rico, said as a young lawyer he struggled with whether to take the federal bar exam—a barrier to entry in the district meant to evaluate English proficiency.
“Even though it’s part of our system, it becomes a moral question: if I am against the presence of that court in Puerto Rico, why should I become part of it?” Arraiza said from a coffee shop outside the courthouse in Old San Juan. “I would become a part of the problem.”
He took the bar in the early 2000s after counseling protesters arrested during demonstrations at a US Navy base on Vieques island that the military used to test weapons.
Tension in recent years often stems from the First Circuit’s role hearing cases related to the Puerto Rico Oversight, Management, and Economic Stability Act. Congress passed the law in 2016 to help the island cope with $72 billion in debt, and charged a Financial Oversight and Management Board for Puerto Rico with restructuring that debt and the federal court with confirming the board’s plans.
Selya said federal courts “were the principal institution that was guarding against excesses perpetrated by the local government. That was often not only not appreciated but frankly resented.”
“There’s some serious issues to the legality of having essentially an unelected board appointed by the president which vetoes the legislative enactments in Puerto Rico,” said Judith Berkan, a longtime civil rights litigator who has brought cases against the board.
Berkan noted that the First Circuit’s role is squarely “to represent US interests in Puerto Rico.”
“At times it will coincide with progress and development in Puerto Rico and things I might support,” she said. “And at times it won’t.”
‘Get Their Day in Court’
The First Circuit’s trips to San Juan clearly have an impact on the cases it hears, said Aida M. Delgado-Colón, a Puerto Rican judge who sits on the US District Court for the District of Puerto Rico.
On Nov. 7, three First Circuit judges ruled in a split en banc opinion in a case dealing with crime on the island that a judge can impose a higher sentence on a defendant to deter crime in a community experiencing a high rate of gun violence.
“The local circumstances in Puerto Rico are not those in Boston and the opinion came down validating that,” said Delgado-Colón. “Our circumstances are different. Those sittings, those visits, help the judges understand that.”
But the ACLU, the ACLU of Puerto Rico, the MacArthur Justice Center, and the NAACP Legal Defense and Educational Fund wrote amicus briefs criticizing the court for imposing an upward sentence based on their “demonstrably false views about violent crime rates in Puerto Rico.”
Many Puerto Rican lawyers are satisfied with the federal court’s relationship with the island.
“The federal judicial system works. It’s one of the few things that still works in my mind,” said Nestor Méndez-Gómez a charter member of Pietrantoni Méndez & Alvarez LLC who was president of the Foundation of the Federal Bar Association.
“Even people who don’t like the federal court because of politics, because of how they feel about our situation as a territory, they still go there to get their day in court if they can,” Méndez-Gómez said.
“I’ve never heard a complaint about those ‘damn federal judges’,” said Eric Vos, who was formerly the district’s federal public defender. “They’re functional, they try to be intellectually honest with their decision-making,” and their rulings often offer deference to Puerto Rican institutions, Vos said.
Remote But Remembered
Despite being closer to the Atlanta-based Eleventh Circuit, Puerto Rico, which became a US territory in 1898, was assigned to the First Circuit in 1917 in part due to Boston-based ownership of sugar mills on the island.
Appeals from the District of Puerto Rico made up 27% of the First Circuit’s caseload in 2021, which has followed Massachusetts as the second-busiest source of appeals since 2015. Puerto Rico regularly accounts for more criminal appeals than the circuit’s four states—Maine, Massachusetts, New Hampshire, and Rhode Island—due to drug, gang, and weapon-related activity on the island.
“It’s a very important piece of our work as judges and as a court to make sure that all of the people who fall within our jurisdiction feel as if they’re being heard by our court,” said David Barron, chief judge on the First Circuit.
In addition to the oral arguments they hold in the mornings, the judges participate in social and educational events with the federal bar association, have dinners with local judges and prominent members of the legal community, occasionally teach classes at local law schools, and meet with courts to learn about their needs.
Sitting in Puerto Rico—a tradition that dates to 1950—makes sense from a practical standpoint, Barron said.
It saves the government money to fly the judges down to Puerto Rico for a week each March and November, rather than reimburse public defenders in every case for their flights and hotels in Boston. Lawyers in Puerto Rico don’t have to bill their clients for the time and cost of travel. And judges in theory benefit from immersion in the island’s history, politics, and culture.
Fifteen or 20 people typically fly to the island for each sitting—a handful of the First Circuit’s 10 judges, each accompanied by a law clerk, as well as two information technology workers, two or three members of the clerk’s office, and a team of US Marshals.
The Philadelphia-based Third Circuit also travels to a US territory, sitting twice each year in St. Croix in the US Virgin Islands. The sittings follow a tradition of the federal appeals courts traveling to cities and towns far from the 12 circuits’ historic seats of power.
But San Juan and St. Croix are the only regular sittings outside of the 50 states. The San Francisco-based Ninth Circuit does not sit in Guam or the Northern Mariana Islands.
“It would be unreasonably expensive and time consuming for the court and litigants to travel there, especially given the very small percentage of our cases from Guam or NMI,” Ninth Circuit Chief Deputy Clerk Susan Gelmis said.
Courtroom Experience
Old San Juan’s historic, six-story Jose V. Toledo Federal Building appears more approachable than the First Circuit’s modern, brick-and-glass home at the John Joseph Moakley Courthouse in Boston.
But inside, the “formality and intimidation” are similar, said Patricia Rivera MacMurray, an entertainment and intellectual property lawyer who has argued before the First Circuit in Boston and in Puerto Rico as managing partner of Bufete Hernandez Mayoral CSP.
Nerves jitter through the legs of an attorney preparing to argue his case sitting in the back of the smaller courtroom. The judges fire questions at attorneys on the weak points in their cases in the same hot bench style as in Boston. Lawyers are politely-yet-firmly told that they’ve exceeded their allotted time before the bench. Attorneys on the sidelines whisper in Spanish.
“The most important part is that the consideration of the case, the decision of the case, and the opinion of the case is emanating from an experience that happens in Puerto Rico rather than from an experience that happens up in New England in a more distant, removed way,” said Rachel Brill, the district’s federal public defender.
Laura Maldonado-Rodriguez, a long-time criminal defense attorney, said the sittings in Puerto Rico allow her clients and their families to be present for their day in court. While they often can’t understand the proceedings, “they see you put up a fight,” she said.
And the Supreme Court of Puerto Rico doesn’t have a strong tradition of holding oral arguments, so the First Circuit’s sessions are often the only opportunity young attorneys have to observe them.
Last month the judges met with a group of law students from the University of Puerto Rico School of Law, who watched four hours of oral argument to see what it takes to become a federal practitioner.
“They teach these kinds of things in law school but to experience it firsthand like we just did today is really eye opening,” said Paula Ortiz Marrero, a fourth-year student in the night program at UPR. “Even though it’s nerve wracking, seeing that the appellants are Puerto Rican, and hearing them even with their accents speaking perfect English, it was like, ‘Oh, I can be here, too. I can aspire to be here.’”
A Resilient District
After Hurricane Maria devastated the island in 2017, the First Circuit supported the US District Court for the District of Puerto Rico from Boston, helping out with the bureaucratic obstacles and paperwork necessary to implement its emergency response. That “was essential” given the lack of internet and cell reception due to widespread power outages, said Judge Delgado-Colón.
The Supreme Court of Puerto Rico also suffered significant damage. Fallen palm trees smashed through glass shields meant to serve as a hurricane barrier, the ceiling caved in on the main courtroom, and mold invaded collections in the library.
The First Circuit’s support stood out compared to the lackluster response from the rest of the government.
“Sometimes I joke, and I say that the circuit judges are our senators,” Delgado-Colón said.
Barron and other First Circuit staff also have advocated for the island’s needs to the Administrative Office of the US Courts and the General Services Administration.
Right now, the district court in San Juan’s Hato Rey neighborhood is in desperate need of more space, with court staff crammed into windowless office space so tightly that they can’t back up their chairs without bumping into each other. Some employees are working in closets.
Barron “was from day one instrumental” in advocating for the construction of a new annex to address space and security concerns, Delgado-Colón said.
The First Circuit’s interaction with the Supreme Court of Puerto Rico is more limited since the latter oversees the application of local law, not federal. But the local and federal court systems “have the same issues. We have the same concerns. Both courts are interested in the community, access to justice, public engagement, and public trust of the court system,” said Maite Oronoz Rodríguez, chief justice of the Supreme Court of Puerto Rico. “There’s a lot of core issues that we can and have worked together on.”
Puerto Rican Representation
Juan Torruella, who in 1984 became the first Puerto Rican judge to sit on a federal appeals court when confirmed to the First Circuit, “was a giant” who wrote enormously consequential opinions about the island, said Manuel San Juan, a civil and criminal litigator who was arguing a case before the First Circuit on the day Torruella died in 2020.
“We are Americans, but we also have a unique and idiosyncratic background that’s not always easily understood by our fellow citizens up in Boston,” San Juan said. “To have somebody there who understands that idiosyncrasy is a tremendous benefit to all of us.”
Torruella advocated for overturning a series of US Supreme Court decisions from the early 1900s known as the Insular Cases, on the Constitution’s application to territories. The Insular Cases have been used as precedent to justify separate and unequal treatment to US citizens based on geography.
In 2004, when the First Circuit held Puerto Ricans do not have the right to vote in the presidential election, Torruella wrote a concurring opinion that courts cannot point fingers at Congress to excuse their inaction on the Insular Cases.
“This problem is no more ‘political’ than that presented to and resolved by the Supreme Court in Brown v. Board of Education,” Torruella wrote, “one that required corrective judicial action even in the face of longstanding legal precedent.”
“He never stopped being a fierce defender of the island and its federal court, nor did he ever stop defending the rights of the people,” Gustavo Gelpí, the Puerto Rican judge who took Torruella’s seat on the bench, said at a standing-room-only Nov. 6 memorial ceremony. The First Circuit named its courtroom in Old San Juan after Torruella to honor his contributions to the court he served for 36 years.
Language Barrier
When he first started traveling to the island decades ago, Selya recalled, “there was almost an aversion, a fear of the First Circuit.” And getting local lawyers to argue cases “was like asking them to go handle a case on Mars.”
The relationship between the First Circuit and the Puerto Rican community has become “mostly cordial” in the decades since.
But Puerto Ricans still face operational challenges in gaining access to the justice system.
The most significant moments of a defendant’s life are often mediated by a translator in district court. The Spanish-speaking, headphone-wearing defendant must communicate intimate details about themselves to a Spanish-speaking judge through a third party.
“It’s absurd to sit in a courtroom where the judge speaks English which at times is not the best, the clerk and personnel of the court all are primarily Spanish speaking, the lawyers who all speak English or Spanish, our clients who maybe speak English but are more likely to be Spanish speaking only, and the whole proceeding goes on in English,” Berkan said.
Part of the Jones Act, the 1917 law granting Puerto Ricans American citizenship, mandates that all the District of Puerto Rico’s court proceedings and pleadings be in English.
So attorneys must translate the record of cases that start in local court but are removed to federal court, which can be tremendously expensive. “That means there’s no access to the courts,” Berkan said.
The English mandate prevents some lawyers from joining the federal bar and inhibits access to justice for litigants in appeals courts that don’t speak the language, said Maldonado-Rodriguez.
“It begs the question, is there real access to justice if you don’t understand what’s going on even though you’re present?” Maldonado-Rodriguez said.
—With assistance from Jennifer Kay.
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