Case 3:04-cv-01452-GAG Document 978

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

WATCHTOWER BIBLE TRACT SOCIETY OF NEW YORK, INC., et al., Plaintiffs, Civil No. 04-1452 (GAG) v. MUNICIPALITY OF SANTA ISABEL, et al., Defendants. AMENDED PARTIAL JUDGMENT AS TO UNMANNED URBANIZATIONS Pursuant to the final disposition hearing held yesterday, March 20, 2013, the court hereby orders the following: 1) All municipal defendants shall collect and deliver to Plaintiffs a means of access to all unmanned urbanizations located within their municipality. Depending on the means of access, each urbanization shall deliver to Plaintiffs a physical key, an access code, beeper, or other device necessary to permit entry to the urbanization. The means of access provided to Plaintiffs must be equal to that of the residents of those urbanizations and must grant Plaintiffs unfettered access to the urbanizations, i.e., without restrictions.1

The court notes Plaintiffs object to this order on the basis that it may create an Establishment Clause violation by treating Jehovahs Witnesses differently and more preferentially than other religious entities. Plaintiffs are correct in arguing the Establishment Clause bars the government from promoting any particular religion over another, or generally, religious beliefs over non-religious beliefs. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 8-9 (1989). The court clarifies and states for the record that Plaintiffs religious beliefs did not alter the outcome of the case. In the course of adjudicating Plaintiffs claims, the court must necessarily fashion a remedy that balances Plaintiffs First Amendment right to religious speech and expression with the Puerto Rico governments right to protect its citizens. No other religious entities were a party to this action. Had other similarly situated religious groups joined Plaintiffs in these claims, they would have probably benefitted from the same remedies.

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Defendants must provide the stated means of access to Plaintiffs no later than April 17, 2013. Any municipality that has not complied with this order as of said date shall be fined $100 for each day until compliance with this order. Plaintiffs, acting under strict orders from the court, are to maintain the keys, beepers and access codes for the sole purpose of expressing their faith. Plaintiffs are not to share the keys, beepers or access codes with any other party, person or organization. Violations of this order shall be deemed as contempt of court and shall be dealt with accordingly. Any urbanization that changes its means of accessing its public streets must notify the municipality in which it is located and Plaintiffs, prior to executing the change. The municipality shall be responsible for delivering the new means of access to Plaintiffs within twenty-four hours of the change. The court notes the inherent cooperation that will be necessary in order to implement these directives. All parties have demonstrated their willingness to work together in resolving these thorny issues. The municipalities are expected to work in good-faith to ensure every urbanization complies with the courts orders. The Jehovahs Witnesses are equally expected to respect the courts orders and to also respect property owners wishes. If a property owner places a sign on his property stating No Trespassing, the Jehovahs Witnesses are expected to respect the wishes of the property owner. Finally, Plaintiffs seek court approval of all currently operated unmanned urbanizations. Plaintiffs rely upon the First Circuit opinion which states, Thus, a manned guard gate for each urbanization is required, unless the urbanization carries a burden of special justification. See Watchtower Bible and Tract Socy of New York v. Municipality of Santa Isabel, 634 F.3d 3, 13 (2011). However, this opinion did not require the court to make such determinations at this time. The court finds that it would be more appropriate to allow the municipalities to initially determine whether these urbanizations have sufficiently made the specific showing necessary

Case 3:04-cv-01452-GAG Document 978 Civil No. 04-1452 (GAG) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SO ORDERED. 3

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to demonstrate a special justification, thus allowing them to not convert to a manned gate. At todays hearing, some municipalities stated the reasons for allowing unmanned gated to remain unmanned -mostly economic. Plaintiffs may argue the municipalities have improperly applied the dictates of the First Circuit. Until such time, the court need not question the judgment of the municipalities; however, the municipalities should be on notice that the court understands the First Circuits definitions and examples of what might constitute special justification should be followed closely. Urbanizations consisting of several dozen residences will clearly not meet this standard. Likewise, urbanizations with high average income will not meet this standard. The court reserves the right to revisit the issue after the municipalities have determined whether the unmanned urbanizations meet the special justification standard. More so, as to all existing unmanned urbanizations, the court finds the remedy it has issued allows Jehovahs Witnesses the same access to unmanned urbanizations as person residing therein, twenty-four hours a day, seven days a week, and every day of the year. Thus, Jehovahs Witnesses rights of religious exercise and expression are, by virtue of the courts ruling, not being limited by any time, place or manner restrictions.

In San Juan, Puerto Rico this 21st day of March, 2013. S/Gustavo A. Gelp GUSTAVO A. GELP United States District Judge