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Puerto Rico records fight puts sovereign immunity before high court

A media fight to uncover financial records from the Puerto Rican government could hinge on a larger question about the island’s sovereignty.

WASHINGTON (CN) — Puerto Rico’s sovereign immunity took a front seat at the Supreme Court on Wednesday in a fight over public records that could shape how the territory is treated in federal courts. 

“What would the difference be if Puerto Rico was a state,” Justice Clarence Thomas asked. 

Thomas’ inquiry was a central theme during oral arguments where the justices tried to pin down what immunity the territory was owed. Chief Justice John Roberts noted that, while Puerto Rico’s sovereignty is sometimes compared to those of Native American tribes, the territory is quite unique. Justice Sonia Sotomayor said the court has previously said Puerto Rico has been called “like a state.” 

“Does the 11th Amendment say states or things like states,” Roberts said. 

Not all the justices were so eager, however, to focus on Puerto Rico’s immunity, particularly because that was not the question they originally agreed to answer. Justice Ketanji Brown Jackson attempted to steer the court away from answering this question since the court was not fully briefed on the issue. Justice Neil Gorsuch appeared to agree, asking if the court should “defer this question for another day.” 

Justice Elena Kagan said it would be “quite weird” to just assume Puerto Rico’s immunity. 

The case stems from a document fight between Centro de Periodismo Investigativo, a nonprofit media organization in Puerto Rico, and the territory’s financial oversight board. CPI wants the board to turn over financial documents from Puerto Rico’s government, communications between the board and government officials, and financial disclosure documents from board members. A court fight brought some documents to light, but the board has withheld other information as shielded by sovereign immunity under the 11th Amendment. 

The Financial Oversight and Management Board for Puerto Rico was created through a law Congress passed to remedy the territory’s dire financial position. In 2016 the island was reported to have $71.5 billion in debt — more than the annual output of the entire island’s economy. Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act, or Promesa, to create federal oversight of the territory’s finances. 

CPI sued the board in 2017 to obtain the withheld financial documents. The media organization uses a section of Puerto Rico’s Constitution that is similar to the First Amendment to argue it has a right to access public records. The board invoked sovereign immunity under the 11th Amendment to dismiss the suit. It also argues that Promesa preempts any disclosure requirement under Puerto Rico law. A federal judge denied the motion to dismiss, however, saying that the board had immunity under the 11th Amendment but Congress waived that immunity in Promesa. 

The board handed over thousands of documents in response to that ruling, but a second court fight erupted over those documents that remain withheld. The First Circuit affirmed another ruling against the board, sending the case to the Supreme Court. 

As the board has argued, Congress must be clear to abrogate immunity, and it did not do so here. 

“For more than a century, this Court has applied a clear-statement rule to questions of abrogation,” Martin Bienenstock, an attorney with Proskauer Rose, wrote in a brief for the board. “Under that standard, abrogation cannot occur absent statutory language making Congress’s intent to abrogate ‘unmistakably clear.’ The clear-statement rule safeguards constitutional norms by ensuring that sovereignty interests are not infringed unless Congress plainly evidences its determination to do so.”  

CPI says the language of Promesa does abrogate the board’s immunity and other provisions in the law confirm this conclusion. It says the board is using the sovereign immunity argument to avoid scrutiny. 

“The Board cannot have it both ways,” Sarah Harris, an attorney for CPI with Williams & Connolly, wrote in the organization’s brief. “Puerto Rico cannot lack the kind of inviolable sovereign attributes necessary to block Congress from inserting the Board as the Commonwealth’s overseer, yet possess just enough inviolable sovereignty for the Board to deflect federal suits brought to hold the Board accountable.” 

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