
    Andrés Pizarro Ortega, Petitioner, v. Superior Court of Puerto Rico, San Juan Part, Miguel A. Montalvo, Judge, Respondent; The People of Puerto Rico, Intervener.
    No. O-71-5.
    Decided September 7, 1972.
    
      Fernando Gallardo Diaz for petitioner. Gilberto Gierbolini, Solicitor General, and Peter Ortiz, Assistant Solicitor General, for intervener.
   JUDGMENT

The writ issued is hereby quashed. Mr. Justice Ramirez Bages, with whom Mr. Justice Pérez Pimentel concurs, concludes that in view of the history of annoying relations between Superior Judge Gil Rivera and lawyer F. Gallardo Diaz, in consonance with what we said in Rivera v. District Court, 71 P.R.R. 893, 901, 902 (1950), we should have suggested to the aforesaid judge to make arrangements for another judge to pass on case G-70-2831.

It was so decreed and ordered by the Court and certified by the Clerk. Mr. Chief Justice, Negrón Fernández, delivered a disqualification vote. Mr. Justice Hernández Matos and Mr. Justice Martin are of the opinion that judgment should have been rendered reversing the order appealed from and ordering the disqualification of Judge Gil Rivera.

(s) José L. Carrasquillo

Clerk

—O—

Vote of Disqualification of

Mr. Chief Justice Negrón Fernández.

San Juan, Puerto Rico, May 31,1972

A tie in the following manner has taken place in this petition:

Four votes: Mr. Justice Rigau, Mr. Justice Dávila, Mr. Justice Torres Rigual, and Mr. Justice Martínez Muñoz in favor of affirming the order of Judge Miguel A. Montalvo, from which appeal is taken, and which denied the motion of Mr. Fernando Gallardo Diaz requesting the disqualification of Judge Guillermo A. Gil Rivera to take cognizance of criminal action No. G-70-2831 of the San Juan Part of the Superior Court.

Two votes: Mr. Justice Pérez Pimentel and Mr. Justice Ramirez Bages in favor of the proposition circulated by Mr. Justice Ramirez Bages, which proposes that the order from which appeal is taken be affirmed, but which suggests Judge Gil Rivera — on the ground of the case Rivera v. District Court, 71 P.R.R. 893, 901, 902 (1950) — to make arrangements for another judge to take cognizance of the aforementioned case; or, otherwise, to reverse said order.

Two votes: Mr. Justice Hernández Matos and Mr. Justice Martin in favor of the reversal of the order appealed from.

In view of the tie they sent me the record.

Reasons of a privileged nature arising from the disciplinary process followed in this Court against the then Judge Fernando Gallardo Diaz — today defendant’s counsel in criminal action No. G-70-2831 — and where the Judge of the Superior Court today, Guillermo A. Gil Rivera, acted as prosecuting attorney, against whom Mr. Gallardo Diaz directed his motion to disqualify . (invoking, among other grounds therefor, according to paragraph 3 of the aforementioned motion, the participation of the then prosecuting attorney Gil Rivera in said prosecution) exist also for the disqualification of the Chief Justice in this incident, since he is the only Judge, among the members of this Court today, who issued a vote against the then Judge Gallardo in the aforementioned disciplinary process.

Under such circumstances, a state of moral disqualification is produced in the Chief Justice to take cognizance of the incident of disqualification against Judge Gil in this petition, and to participate in its decision. On the grounds thereof the Chief Justice is disqualified sua sponte from participating in this petition.

The rule of necessity cannot prevail over the state of moral disqualification.  