Acosta v. Agosto

• Decision Date: 21 June 1984
• Docket Number: Civ. No. 84-1441(JP).
• Parties: Nelson Martinez ACOSTA, Plaintiff, v. Miguel Hernandez AGOSTO, and Juan Rivera Ortiz, in their personal and official capacities, Defendants.
• Court: U.S. District Court — District of Puerto Rico

590 F. Supp. 144

Nelson Martinez ACOSTA, Plaintiff, v. Miguel Hernandez AGOSTO, and Juan Rivera Ortiz, in their personal and official capacities, Defendants.

Civ. No. 84-1441(JP).

United States District Court, D. Puerto Rico.

June 21, 1984.

Alex Gonzalez, Hato Rey, P.R., Antonio Cordova Gonzalez, San Juan, P.R., for plaintiff.

Marcos A. Ramirez Irizarry, Ramirez & Ramirez, Hato Rey, P.R., for defendants.

OPINION AND ORDER

PIERAS, District Judge.

On May 30, 1984, the Court was faced with the petition of plaintiff, the Secretary of Justice Nelson Martinez Acosta, to enjoin his attendance at a hearing before the Senate Nominations Committee, to be held the following day, May 31, 1984, at 10:00 a.m. Said petition was temporarily granted that same evening and a preliminary hearing was scheduled for June 8, 1984, in order to provide both parties an opportunity to present their respective views. The hearing was duly held as scheduled, the Court was appraised of the merits of the case and hereby concludes as follows:

I. FACTUAL BACKGROUND:

The factual background of the present case encompasses the competing interests of the Executive and Legislative Branches of the Commonwealth of Puerto Rico regarding their powers as provided by the Constitution of Puerto Rico, under Article IV, Sections 4 and 5, which read as follows:

§ 4. Powers and duties of Governor The Governor shall execute the laws and cause them to be executed.

He shall call the Legislative Assembly of the Senate into special session when in his judgment the public interest so requires. He shall appoint, in the manner prescribed by this Constitution or by law, all officers whose appointment he is authorized to make. He shall have the power to make appointments while the Legislative Assembly is not in session. Any such appointments that require the advice and consent of the Senate or of both houses shall expire at the end of the next regular session....

§ 5. Appointment of Secretaries; Council of Secretaries

For the purpose of exercising executive power, the Governor shall be assisted by Secretaries whom he shall appoint with the advice and consent of the Senate. The appointment of the Secretary of State shall in addition require the advice and consent of the House of Representatives, and the person appointed shall fulfill the requirements established in Section 3 of this Article. The Secretaries shall collectively constitute the Governor's advisory council, which shall be designated as the Council of Secretaries.

This controversy stems from the precarious power struggle of plaintiff's recess appointment by the Governor of Puerto Rico to the position of Secretary of Justice, and the power of advice and consent which the Puerto Rican Senate has and its legislative power of investigation. It is well accepted and known in Puerto Rico that the Governor and the Senate, besides being from different political parties, have been in public confrontation and political disharmony. On April 12, 1984, near the end of the past regular session of the Legislature, the Senate approved Senate Resolution No. 810 (Exhibit 1) ordering the Senate Appointment Committee to conduct an investigation of all interim and recess appointments made by the Governor. Nelson Martínez Acosta was appointed Deputy Secretary of Justice on September 17, 1983, when Carmen Rita Vélez Borras, then Secretary of Justice, resigned; the plaintiff became Acting Secretary of Justice on December 20, 1983. The Secretary of Justice was subsequently sued in the local Courts by the Senate on May 11, 1984 and an injunction was sought to bar him from assuming the duties of Secretary of Justice. Hernández Agosto v. Martínez Acosta, Superior Ct. of P. Rico, S.J. Part, Civil No. PE 84-610 (1003). Mr. Nelson Martínez Acosta held the position in an interim basis throughout the time in which the Senate held its regular session, but his name was never formally submitted to the Senate Nominating Committee for confirmation and no special session was called for that purpose. The next ordinary session of the Legislature will be the second Monday of January, 1985 according to the Laws and Constitution of the Commonwealth of Puerto Rico. By that time, a new Senate will be in as the general elections will be held November 6, 1984. The Governor is not required to submit his recess appointments to the Legislature when the latter is not in session. To call a special session of the Legislature and the decision of what to include in the Agenda is a prerogative of the Executive Branch of Government.

The Governor, on May 17, 1984, appointed plaintiff to the post of Secretary of Justice, in a recess basis. In response to this, on May 24, 1984, the President of the Senate, Senator Miguel Hernández Agosto, codefendant herein, acting pursuant to Rule XII (12) of the Senate Regulations, and Senate Resolution No. 810, directed and ordered the Senate's Standing Committee on Appointments to commence an investigation and hold public hearings on the recess appointment of plaintiff as Secretary of Justice. One day later, on May 25, 1984, Senator Juan Rivera Ortíz, codefendant herein, acting pursuant to Rule XIV(1)(6) of the Senate Regulations, issued a subpoena for the attendance of plaintiff, in his official capacity as Secretary of Justice, to a public hearing of the Appointment Committee on May 31, 1984. The Secretary of Justice was served on May 29, 1984 and the following day he filed the present civil rights suit seeking injunctive relief enjoining him from attending the hearing and monetary relief. This Court, on May 30, 1984, issued a Temporary Restraining Order enjoining defendants from enforcing the subpoena and scheduled the preliminary hearing subject of this Opinion and Order.

II. CONCLUSIONS OF LAW:

It becomes paramount for our discussion to recognize the purpose of the legislature and the legislative freedom which its members enjoy. Article I, Sec. 6, Clause 1, of the Constitution of the United States, provides:

"The Senators and Representatives shall receive a compensation for their services to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Sessions of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

This legislative immunity belongs to the members of Congress, not with the purpose of shielding them against prosecution, but rather to protect the integrity of the legislative process by ensuring the independence of the individual legislators in executing their duties without fear of prosecution. See: United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972); Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881); Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); reh. den. 409 U.S. 902, 93 S.Ct. 98, 34 L.Ed.2d 165.

It must be noted that the Clause shields not only federal legislators, but state legislators as well. Star Distributors, Ltd. v. Marino, 613 F.2d 4 (2nd Cir. 1980); Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1971). Thus, under Title 42, United States Code, Section 1983, state and federal legislators are immune from suit for injunctive relief and damages based on their activities within the traditional sphere of legislative activity. The Clause's privilege covers "things generally done in session of the House by one of its members in relation to the business before it." Kilbourn, supra, quoted with approval in United States v. Johnson, 383 U.S. 169, 179, 86 S.Ct. 749, 754, 15 L.Ed.2d 681 (1966). As to matters not encompassing speech or debate by one of its members, the privilege will reign if these other matters constitute "an integral part of the deliberative and communicative process by which members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House ..." Gravel v. United States, 408 U.S., at 625, 92 S.Ct., at 2627. Furthermore, the Courts have extended the privilege to matters beyond pure speech or debate in either House, but "only when necessary to prevent indirect impairment of such deliberations." United States v. Doe, 455 F.2d 753, 760 (1st Cir.1972).

The Supreme Court case of Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct 783, 95 L.Ed. 1019 (1951), involved a suit for violation of civil rights by the Senate Fact-Finding Committee on Un-American Activities, a California Legislative Committee. Mr. Justice Frankfurter ruled that under the circumstances of the case, the committee and its individual members were acting in the sphere of legitimate legislative activities in calling the plaintiff, Brandhove, before it and examining him. The Court held that the civil rights statute did not create a civil liability for the Committee's conduct. The background of Tenney puts us in the "Red" scare following World War II. Brandhove alleged that the hearing "was not held for a legislative purpose", but was designed "to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights of free speech ..." Tenney, 71 S.Ct. at 785. The Supreme Court emphasized that "the claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence, but for the public good." Tenney, at 788.

In the case at bar, the defendants are members of the Puerto Rican Senate and their investigation of plaintiff as Secretary of Justice becomes part of the function of a representative government. The legislature acts within...