Romero-Barcelo v. Hernandez-Agosto

• Decision Date: 01 August 1995
• Docket Number: No. 95-1235,ROMERO-BARCEL,HERNANDEZ-AGOSTO,P,95-1235
• Parties: Carloslaintiff, Appellant, v. Miguel, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 23

75 F.3d 23

Carlos ROMERO-BARCELO, Plaintiff, Appellant, v. Miguel HERNANDEZ-AGOSTO, et al., Defendants, Appellees.

No. 95-1235.

United States Court of Appeals First Circuit.

Heard Aug. 1, 1995.

Decided Jan. 31, 1996.

Michael J. Rovell, with whom Lisa I. Fair, Hilary A. Higgins, Carlos G. Latimer and Latimer, Biaggi, Rachid, Rodriguez, Suris & Godreau, Santurce, PR, were on brief for appellant.

Marcos A. Ramirez-Lavandero, with whom Eduardo A. Vera-Ramirez and Marcos A. Ramirez-Lavandero & Associates were on brief, San Juan, PR, for appellees.

Before SELYA, CYR and LYNCH, Circuit Judges.

CYR, Circuit Judge.

This appeal involves the most recent installment in the ongoing Cerro Maravilla political scandal, which has engaged public attention in the Commonwealth of Puerto Rico for more than fifteen years, and enlisted our attention on several occasions since 1981. In this latest sequel, plaintiff Carlos Romero-Barcelo (or "appellant") challenges a district court judgment dismissing various civil rights claims, with prejudice, based on absolute legislative immunity and failure to state a claim, and dismissing, without prejudice, certain pendent claims under Puerto Rico law. We affirm the district court judgment in all respects.

I BACKGROUND ¹

On February 22, 1981, the Puerto Rico Senate, then controlled by the Popular Democratic Party ("PDP"), authorized an investigation into the brutal ambush and murders of two pro-independence youths, Arnaldo Dario-Rosado and Carlos Soto-Arrivi, by Commonwealth police officers at Cerro Maravilla in the mountains of Puerto Rico during Following the San Juan Star decision, the Senate Judiciary Committee (or "Committee") gained access to materials which--together with other documents and testimony gathered in executive session--formed the basis for televised Committee hearings (or "Hearings") which began June 15, 1983. The Senate voted to pay to televise the Hearings on a commercial station and "the hearings were apparently widely viewed." Id. at 87. Thereafter, we reversed a district court order enjoining Committee members and their agents from compelling some of the defendants in a separate civil rights action arising out of the murders of Dario-Rosado and Soto-Arrivi (the "Soto" litigation), see Soto v. Romero Barcelo, 559 F.Supp. 739, 740-41 (D.P.R.1983), to appear and testify publicly at the Hearings; and, "from publishing documents in the [Committee members'] possession that are covered by the protective order issued in [the Soto litigation] or that are transcripts of testimony before the Committee by [some of the Soto defendants]." Colon Berrios, 716 F.2d at 86, 87.

                the summer of 1978.   At the time of the murders, appellant Romero-Barcelo was the Governor of Puerto Rico, and headed the New Progressive Party ("NPP") which controlled the Senate.   As part of the Senate investigation, subpoenas were issued for documents in the possession of the Puerto Rico Justice Department.   In due course, this court vacated a district court order quashing the subpoenas, In re San Juan Star Co., 662 F.2d 108, 111, 118-20 (1st Cir.1981), while noting that a state legislature might be enjoined "in a proper case."  Colon Berrios v. Hernandez Agosto, 716 F.2d 85, 88 (1st Cir.1983) (internal quotation marks omitted)
                

The Hearings were reconvened in October 1984, preparatory to the November 1984 gubernatorial elections in which Romero-Barcelo ran for reelection and lost. Following a break in the political action, the most recent round of Hearings began in October 1991, as a prelude to a PDP-sponsored referendum in December 1991 on the future intergovernmental relationship between Puerto Rico and the United States. Once Romero-Barcelo announced his candidacy for Resident Commissioner, these Hearings were extended through May 1992. During the latter phases of the Hearings, while the PDP controlled the Senate, defendant-appellee Miguel Hernandez-Agosto served as Senate President, defendant-appellee Marco Antonio-Rigau headed the Senate Judiciary Committee, and defendant-appellee Edgardo Perez-Viera, chief counsel, directed Committee investigative efforts.

Appellant Romero-Barcelo claims, inter alia, that Committee members slanted and manipulated the Committee testimony and evidence to suggest that he had been involved in the planning and shooting of the two youths at Cerro Maravilla, and in subsequent attempts to cover up the murders. He alleges that witnesses were interviewed in private, without legal assistance; subpoenas were issued without notifying all Committee members; only one Committee investigator was appointed and he reported exclusively to the PDP majority; access to all documents, transcripts of testimony, evidence, and reports was restricted to PDP members, their aides and assistants; the Committee violated a Puerto Rico Supreme Court order that the documents and other materials be made available to the NPP minority; witnesses were not allowed access to transcripts of their prior testimony before testifying; an investigative report--finding no wrongdoing by Romero-Barcelo--was covered up; the witness microphone was turned off when testimony did not suit defendants Hernandez-Agosto and Antonio-Rigau, or other PDP members.

Romero-Barcelo alleges that from the late 1970s the defendants and the Committee continuously labelled him as an assassin or murderer, even though no evidence was ever submitted to substantiate the charge; that defendant Perez presented information at the Hearings, and subsequently through press releases and television and radio interviews, knowing it to be false or misleading; that the defendants continually disseminated false information outside the legislative chambers, through television broadcasts made at government expense, press releases and interviews arranged and conducted at the Legislature in public areas and at television studios, political speeches delivered in various municipalities In September 1992, appellant brought suit in federal district court under 42 U.S.C. § 1983, asserting violations of his First, Fifth, and Fourteenth Amendment rights under the United States Constitution, and under 42 U.S.C. § 1985(3), for conspiracy to deprive him of these constitutional rights. He demanded compensatory and punitive damages, costs, and attorney fees. See 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights and elective franchise). Finally, he alleged supplemental claims for libel and slander under Puerto Rico law. See 28 U.S.C. § 1367. The defendants moved to dismiss under Fed.R.Civ.P. 12(b)(6), asserting absolute legislative immunity, and failure to state a claim. The district court dismissed all federal claims, with prejudice, and the libel and slander claims, without prejudice. Romero-Barcelo appealed.

                press releases distributed to news media within and beyond Puerto Rico, as well as written and oral communications to the United States Senate and House of Representatives, federal departments, and agencies.   Appellant complains that the defendants held press conferences at radio and television stations and other public forums after the Hearings, publicly passing judgment on statements made before the Committee regarding the credibility of witnesses, the strength or weakness of the evidence, and publicly accusing witnesses and third parties, including Romero-Barcelo, of perjury before the Committee.   This campaign allegedly was carried out through public speechmaking and political campaign rallies, as well as television and radio broadcasts, newspapers, and by other public means
                

II

DISCUSSION ²

We first consider the alleged conduct that the district court found to be protected under the doctrine of absolute legislative immunity. Next, we determine whether the remaining conduct in which defendants are alleged to have engaged gave rise to any actionable claim under either section 1983 or section 1985(3).

A. Absolute Legislative Immunity

A defense of absolute legislative immunity for state legislators has been recognized since 1951. Colon Berrios, 716 F.2d at 89 (citing Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)). Of course, absolute immunity affords protection not only from liability but from suit. Agromayor v. Colberg, 738 F.2d 55, 57 (1st Cir.), cert. denied, 469 U.S. 1037, 105 S.Ct. 515, 83 L.Ed.2d 405 (1984) (citing Helstoski v. Meanor, 442 U.S. 500, 506-08, 99 S.Ct. 2445, 2448-49, 61 L.Ed.2d 30 (1979)). State legislative immunity is " 'similar in origin and rationale to that accorded Congressmen under the Speech or Debate Clause' " of the United States Constitution. Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1098, 130 L.Ed.2d 1066 (1995) (quoting Supreme Court of Va. v. Consumers Union of the United States, Inc., 446 U.S. 719, 732, 100 S.Ct. 1967, 1974-75, 64 L.Ed.2d 641 (1980)). Although not based on the doctrine of separation of powers, as is the constitutional immunity accorded Members of Congress, the state legislative immunity defense nonetheless implicates "principles of comity and federalism...." Agromayor, 738 F.2d at 58-59 (citing United States v. Gillock, 445 U.S. 360, 370-73, 100 S.Ct. 1185, 1192-94, 63 L.Ed.2d 454 (1980)). See also National Ass'n of Social Workers v. Harwood, 69 F.3d 622, 628 (1st Cir.1995).

The immunity defense in this case protects only conduct within the "sphere of legitimate legislative activity." Colon Berrios, 716 F.2d at 89 (citing Doe v. McMillan, 412 U.S. 306, 320, 93 S.Ct. 2018, 2028-29, 36 L.Ed.2d 912 (1973); Tenney, 341 U.S. at The scope of state legislative immunity from suit under section 1983 is "essentially coterminous" with the absolute immunity accorded members of Congress under the Speech or Debate Clause of the United States Constitution (or "the Clause"). Harwood, 69 F.3d at 629 (citing Supreme Court of Va., 446 U.S. at 732-33, 100 S.Ct. at 1974-75). For the Clause to...