Watchtower Bible Tract Society of New York, Inc. v. Sánchez-Ramos (647 F. Supp. 2d 103, 2009)

OPINION AND ORDER

JAIME PIERAS, JR., Senior District Judge.

Before the Court are several motions for summary judgment, filed by the following parties: (1) Plaintiffs Watchtower Bible and Tract Society of New York and Congregación Cristiana de Testigos de Jehová en Puerto Rico, Inc. (No. 507); (2) Defendants Roberto Sánchez-Ramos, as Secretary of the Department of Justice, Hon. Aníbal Acevedo-Vilá, as Governor of the Commonwealth of Puerto Rico, Angel D. Rodríguez-Quiñones, as Director of the Planning Board, and Luis A. Vélez-Roche, as Administrator of the Regulations and Permits Administration, in their official capacities (hereinafter the “Commonwealth Defendants”) (No. 516); (3) Defendant Municipality of Dorado (No. 518); (4) Defendant Municipality of Trujillo Alto (No. 520); (5) Defendants Municipality of Bayamón, Municipality of Guaynabo, and Municipality of San Juan (No. 527); and (6) Defendant Municipality of Caguas (No. 528).

Also before the Court are the parties’ respective responses in opposition to motions for summary judgment. For the reasons stated herein, Plaintiffs’ motion for summary judgment (No. 507) is hereby DENIED, and Defendants’ motions for summary judgment (Nos. 516, 518, 520, 527, and 528) are hereby GRANTED.

I. INTRODUCTION AND BACKGROUND

Due to the complex procedural history and number of parties involved, the Court will provide a brief overview of the case history.

A. The Parties

Plaintiffs Watchtower Bible and Tract Society of New York (hereinafter ‘Watchtower”) and Congregación Cristiana de Testigos de Jehová en Puerto Rico (hereinafter “Congregación”) brought the instant case against Defendants, arguing that Puerto Rico Laws No. 21 and No. 22 (hereinafter the “Controlled Access Laws”), P.R. Laws Ann. tit. 23, §§ 64-64h, violate their rights under the First, Fourth and Fourteenth Amendments of the United States Constitution. The Controlled Access Laws grant neighborhoods the authority to close off access to public streets by means of walls and gates. Plaintiff Watchtower is a corporation utilized by the Governing Body of Jehovah’s Witnesses to print and distribute Bible-based books and magazines. Plaintiff Congregación is a corporation utilized by the Governing Body of Jehovah’s Witnesses to, among other things, administer the 327 congregations of Jehovah’s Witnesses located throughout the Commonwealth of Puerto Rico. Plaintiffs allege, in part, that the Controlled Access Laws have impeded their efforts to distribute religious literature and therefore to attract new members.

Defendants are the Commonwealth Defendants; the Municipalities of Bayamón, Caguas, Dorado, Guaynabo, Gurabo, Ponce, San Juan, and Trujillo Alto; and the urbanizations Pacifica Homeowners Association and Villa Paz. Plaintiffs’ amended complaint (No. 49) originally named additional municipalities and urbanizations as Defendants, but, as explained below, several Defendants have been subsequently eliminated from the case.

B. Procedural History

On August 9, 2005, 389 F.Supp.2d 171 (D.P.R.2005), the Court issued an Opinion and Order (No. 29) granting in part and denying in part Defendants’ Motion to Dismiss. The Court dismissed Plaintiffs’ constitutional allegations pertaining to the facial constitutionality of the Controlled Access Laws. However, the Court declined to dismiss Plaintiffs’ constitutional challenges to the Controlled Access Laws as they are applied, holding that to do so would be premature given the undeveloped factual record of the case. See Antilles Cement Carp. v. Acevedo Vilá, 408 F.3d 41 (1st Cir.2005) (Selya, J.). The Court also declined to dismiss Plaintiffs’ claims under 42 U.S.C. section 1983 (“Section 1983”) for the same reason. As such, Plaintiffs’ “as applied” claims and Section 1983 claims remain before the Court, and are the subject of the above-named motions for summary judgment.

On September 19, 2006, the Court issued another Opinion and Order (No. 34), this time denying Plaintiffs’ motion for leave to initiate an interlocutory appeal of the Court’s dismissal of Plaintiffs’ facial unconstitutionality claims. In said Opinion and Order, Plaintiffs were ordered to provide the Court with detailed information regarding the conditions permitting or preventing access at the various urbanizations. The Court further ordered Plaintiffs to include as defendants in then-amended complaint the specific communities which would be affected by any decision of this Court.

On April 5, 2007, Plaintiffs filed an amended complaint (No. 49), adding an additional thirty-eight Defendants to the instant litigation. Said Defendants are comprised mainly of municipalities and homeowners’ associations.

On January 22, 2008, the Court issued an Opinion and Order (No. 249) denying several motions to dismiss and one motion for summary judgment, which were filed by various Defendants. In its Opinion, the Court noted, inter alia, that a municipality’s delegation of a portion of its authority over public streets to homeowners’ associations does not abrogate the municipality’s obligation to ensure that public streets remain available for public use.

On April 1, 3, and 4, 2008, three separate Initial Scheduling Conferences were held. In the Initial Scheduling Conference Order (No. 385), the Court ordered each Defendant urbanization to file, on or before May 19, 2008, a brief history as to the construction of the urbanization. In particular, the Court ordered each Defendant urbanization to indicate whether the initial construction of the streets in the urbanization was paid for with private or public funding.

On April 21, 2008, the Court issued an Opinion and Order (No. 384) denying a motion for summary judgment filed by Defendant Asociación Comunitaria del Turabo, Inc. (“Turabo”). The Court held that in light of the factual controversy regarding Plaintiffs’ ability to access the moving Defendant’s urbanization, summary judgment was not appropriate. Subsequently, Defendant Turabo filed a motion for entry of judgment (No. 378), in which Turabo acknowledged that in the past Plaintiffs had been denied access to the Turabo urbanization, and agreed to be bound by an Order of the Court to provide unfettered access. The Court granted Turabo’s motion for entry of judgment on May 15, 2008 (No. 419).

On May 30, 2008, the Court issued an Opinion and Order (No. 446) granting motions by several Defendant urbanizations for entry of judgment stating that Plaintiffs shall have unfettered access to the moving Defendants’ urbanizations. Specifically, the Court ordered that:

Plaintiffs shall have unfettered access to the following Defendant Urbanizations: ... Said access shall not be restricted by the guard into the urbanization, but each individual resident shall have the right to refuse entry of Plaintiffs into his or her individual home. Failure by said Defendant Urbanizations to adhere to this Order will be grounds for contempt.

The Court further held that the moving Defendants’ agreement to the unfettered access language mooted the controversy involving those urbanization Defendants. Accordingly, the Court dismissed said Defendants. On July 9, 2008 and August 8, 2008, the Court entered two further Opinions (Nos. 465 and 468), in which additional urbanizations were dismissed after agreeing to be bound by the unfettered access language.

On June 9, 2008, the Court entered a Default Judgment (No. 455) for Plaintiffs against several Defendant municipalities and urbanizations that had failed to answer Plaintiffs’ complaint. The Court deemed the defaulting Defendants to have admitted the allegations of Plaintiffs’ amended complaint. The Court also ordered the defaulting urbanizations to provide the Plaintiffs unfettered access to their urbanizations, and ordered the defaulting municipalities to provide the Plaintiffs unfettered access to urbanizations within their jurisdiction.

Presently, the Defendants remaining in the case are the Commonwealth Defendants; the Municipalities of Bayamón, Caguas, Dorado, Guaynabo, Gurabo, Ponce, San Juan, and Trujillo Alto; and the urbanizations Pacifica Homeowners Association and Villa Paz.

II. MATERIAL FACTS NOT IN GENUINE ISSUE OR DISPUTE

The following material facts were deemed uncontested by all parties at the Initial Scheduling Conferences on April 1, 3, and 4, 2008 (No. 385).

1. Watchtower is a corporation utilized by the Governing Body of Jehovah’s Witnesses to print and distribute Bible-based books and magazines.

2. The Governing Body is an ecclesiastical group of elders who provide spiritual direction to Jehovah’s Witnesses worldwide.

3. Since 1909, Watchtower has been the publisher of numerous Bibles, tracts, magazines, booklets, and books, including the semimonthly magazines entitled The Watchtower and Awake!, all of which are distributed throughout the United States, including Puerto Rico, and elsewhere.

4. Jehovah’s Witnesses use the Bible along with religious publications produced by Watchtower to personally discuss with their neighbors the wonderful promises recorded by God in the Bible.

5. Congregación Cristiana de los Testigos de Jehová de Puerto Rico, Inc., is a Corporation utilized by the Governing Body of Jehovah’s Witnesses, among other things, to administer to the 318 congregations of Jehovah’s Witnesses located throughout the Commonwealth of Puerto Rico.

6. As part of their ministry, Jehovah’s Witnesses, including those in Puerto Rico, offer home Bible studies and religious literature without cost.

7. On May 20, 1987, the Puerto Rico Legislature passed Law No. 21, “empowering residential associations with the ability to close off their neighborhoods to outsiders.” Figueroa v. Fernandez, 921 F.Supp. 889, 892 (D.P.R.1996). Authority was granted to close off access to public streets in neighborhoods by means of walls and gates. On July 16, 1992, the Puerto Rico Legislature passed Law No. 22, amending portions of Law No. 21.

8. On April 30, 1997, local representatives of those administering the activities of Jehovah’s Witnesses in Puerto Rico testified before the Commission for Municipal Affairs of the House of Representatives.

9. In some urbanizations, Jehovah’s Witnesses can obtain access through a pedestrian gate.

10. The Municipality of Caguas is a municipality of the Commonwealth of Puerto Rico organized and existing pursuant to the Autonomous Municipalities Law, Title 21, Puerto Rico Laws Annotated, sec. 4001 et seq.

11. The Municipality of Caguas has issued ordinances adopting regulations governing controlled access to neighborhoods, pursuant to the Controlled Access Laws.

12. The Municipality of San Juan is a municipality in the Commonwealth of Puerto Rico, organized and existing pursuant to the Autonomous Municipalities Law, Title 21, Puerto Rico Laws Annotated, sec. 4001 et seq.

13. The Municipality of Bayamón is an entity, as set forth by the laws of the Commonwealth of Puerto Rico, that has the legal capacity to sue and to be sued.

14. The Controlled Access Laws grant municipalities the authority to issue authorizations or permits for control of streets, urbanizations or communities under the circumstances described in the Laws, and the Municipality of Bayamón has issued authorizations in compliance with said Laws.

15. Pacifica is duly-organized and registered in the Puerto Rico Department of State as a nonprofit institution and has its principal place of business in Trujillo Alto, Puerto Rico.

16. Pacifica is a controlled access community.

17. The Municipality of Ponce is a municipality of the Commonwealth of Puerto Rico, organized and existing pursuant to the Autonomous Municipalities Law, Title 21, Puerto Rico Laws Annotated, sec. 4001 et seq. The Municipality of Ponce adopted ordinance No. 103 of April 10, 1996, superseded by No. 45 of May 14, 2003, adopting regulations governing controlled access to neighborhoods, pursuant to the Controlled Access Laws.

18. The Municipality of Trujillo Alto is a municipality in the Commonwealth of Puerto Rico.

19. The Municipality of Trujillo Alto, in accordance with Planning Regulation No. 20, enacted a Municipal Ordinance that created the Technical Committee which evaluates the permits for gates. Said evaluations are done pursuant to the Controlled Access Laws.

20. The Municipality of Gurabo is a municipality in the Commonwealth of Puerto Rico, organized and existing pursuant to Law 81 of August 30,1991, as amended.

The parties have submitted over nine hundred additional facts in connection with the motions for summary judgment and oppositions thereto. The Court takes this opportunity to remind the parties of the language of Local Rule 56:

... (b) Supporting Statement of Material Facts

A motion for summary judgment shall be supported by a separate, short, and concise statement of material facts, set forth in numbered paragraphs ...

(c) Opposing Statement of Material Facts

A party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement of material facts....

(emphasis added). While the present case is complex and warrants development of a thorough factual record, in at least some instances the parties’ statements of facts could not be described as short and concise. Nevertheless, the Court has reviewed the full record and will give well-supported facts due attention in the following analysis.

In the interest of conciseness, the Court will not list here each fact deemed admitted as a result of stipulation or clear support in the record. However, in order to provide further context regarding facts of the case, the Court will list a brief selection of facts. The Court emphasizes that the facts listed here are not the full scope of facts deemed admitted and considered by the Court. Nor are the following facts intended to be perfectly representative of the broader factual record. The following are intended as examples only to provide familiarity with some of the relevant factual context:

1. Under P.R. Laws Ann, tit. 23, § 64, municipalities have authority to issue authorizations or permits for access control of streets, urbanizations or communities under the circumstances described in such statute and the Municipality of Bayamón has issued such authorizations or permits in compliance with those statutory provisions. (Bayamón SOF # 7.)

2. When a permit request is received, the Municipality of Bayamón opens a file for the urbanization, and keeps the file for the life of the urbanization. Approximately one hundred such files exist for approved or pending controlled access permits in Bayamón. The majority of these files pertain to urbanizations who have completed the request process and received an approved permit. (Santana-del Pilar Dep. at 6-7, Oct. 21, 2008; PL’s Opp. to Bayamón SOF # 7.)

3. The municipalities’ power to grant controlled access permits is subject to oversight by Commonwealth officials. The Planning Board of the Commonwealth of Puerto Rico (“Planning Board”) is empowered, by regulation adopted by the Governor of the Commonwealth, to adopt rules regarding the procedure for granting controlled access permits. (Commonwealth Def.’s SOF # 21-26.)

4. The Commonwealth Administration of Regulation and Permits administers applicable regulations of the Planning Board regarding permits, but does not provide instructions or guidelines to municipalities and/or urbanizations dealing with the administration, implementation, and/or enforcement of the Controlled Access Laws. (Commonwealth Def.’s SOF # 27-30.)

5. At the urbanization of Valles del Lago, in the Municipality of Caguas, Jehovah’s Witnesses have been excluded by the security guard. On one such occasion, the urbanization security guard contacted the municipal police, who arrived and sought to convince the Jehovah’s Witnesses to cease their preaching activities and take up the issue with the urbanization board of residents. (Caguas SOF # 46-48.)

6. On two different occasions one of Jehovah’s Witnesses was issued a citation for engaging in their ministry in a controlled access community in Caguas. (Pl.’s Opp. to Caguas SOF, Add’l Fact # 2.)

7. At the urbanization of Estancias de Bairoa in the Municipality of Caguas, Jehovah’s Witnesses are permitted access to preach during one or two hours per week. (Caguas SOF # 42-43.)

8. In 2007, Plaintiffs conducted an island-wide survey and recorded data indicating how many of the urbanizations within each municipality permit some form of access to Jehovah’s Witnesses. (PL’s Ex. 2.)

9. The 2007 access control survey indicates that eight out of twelve total urbanizations within the Municipality of Dorado do not permit access to Jehovah’s Witnesses. The survey also indicates that twenty-nine out of thirty-three urbanizations within the Municipality of Trujillo Alto do not permit access to Jehovah’s Witnesses. Id.

10. The Commonwealth Defendants have no mechanisms in place to address complaints by an individual being denied access to public streets within a controlled access community. (Commonwealth Def.’s Mot. Summ. J. at 516; PL’s Opp. to Commonwealth Def.’s SOF, Add’l Fact # 8.)

11. On several occasions, Commonwealth police have participated in enforcing the exclusion of Jehovah’s Witnesses from controlled access communities. (PL’s Opp. to Commonwealth Def.’s SOF, Add’l Facts # 9-17.)

12. Defendant Pacifica does not admit visitors seeking to speak with residents or distribute printed materials, unless the visitor specifically arranges authorization from a resident. (Colón Resto Dep. 17:1-17:13, July 15, 2008) (No. 503).

III. LEGAL STANDARD FOR A MOTION FOR SUMMARY JUDGMENT

Summary judgment serves to assess the proof to determine if there is a genuine need for trial. Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990). Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when “the record, including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, viewed in the light most favorable to the nonmoving party, reveals no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Zambranca-Marrero v. Suárez-Cruz, 172 F.3d 122, 125 (1st Cir.1999) (stating that summary judgment is appropriate when, after evaluating the record in the light most favorable to the non-moving party, the evidence “fails to yield a trial .worthy issue as to some material fact”); Goldman v. First Nat’l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993); Canal Ins. Co. v. Benner, 980 F.2d 23, 25 (1st Cir.1992). The Supreme Court has stated that “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In this way, a fact is material if, based on the substantive law at issue, it might affect the outcome of the case. See Mack v. Great Atl. and Pac. Tea Co., Inc., 871 F.2d 179, 181 (1st Cir.1989).

On a summary judgment motion, the movant bears the burden of “informing the district court of the basis for its motion and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, the burden shifts to the opposing party who may not rest upon mere allegations or denials of the pleadings, but must affirmatively show, through the filing of supporting affidavits or otherwise, that there is a genuine issue of material fact for trial. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Goldman, 985 F.2d at 1116.

IV. ANALYSIS

Plaintiffs move for summary judgment arguing that there is no issue of material fact as to the unconstitutionality of the Controlled Access laws as they are applied to Plaintiffs by Defendants. Plaintiffs’ as applied claims arise under the First, Fourth, and Fourteenth Amendments to the United States Constitution, as enforced through Section 1983. Plaintiffs argue that the record shows violations of their freedoms of speech, press, exercise of religion, and association, as well as their rights of due process, equal protection, and to be free from unreasonable seizure.

Defendants move for summary judgment arguing that the record shows, without any genuine issue of material fact, that Defendants’ application of the Controlled Access Laws to Plaintiffs is constitutional. Several of the Defendant municipalities also raise defenses arguing that Plaintiffs lack standing, and that Plaintiffs’ claims have become moot and are barred by the applicable statute of limitations. The Court will now consider the parties’ arguments in turn. Because the parties’ respective motions and oppositions involve the same issues, the Court considers them together.

A. Plaintiffs’ Freedom of Speech, Press, and Exercise of Religion Claims (First