Agromayor v. Colberg

• Decision Date: 13 October 1983
• Docket Number: Civ. No. 83-0980.
• Citation: 573 F. Supp. 939
• Parties: Manuel AGROMAYOR, Plaintiff, v. Severo COLBERG, Defendant.
• Court: U.S. District Court — District of Puerto Rico

573 F. Supp. 939

Manuel AGROMAYOR, Plaintiff, v. Severo COLBERG, Defendant.

Civ. No. 83-0980.

United States District Court, D. Puerto Rico.

October 13, 1983.

Harvey B. Nachman, Santurce, P.R., for plaintiff.

Marcos A. Ramirez Lavandro, Ramirez & Ramirez, Hato Rey, P.R., for defendant.

OPINION AND ORDER

TORRUELLA, Chief Judge.

This action for damages under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3 & 4) is before us on Defendant's Motion to Dismiss, which is opposed by the Plaintiff.

The facts alleged in the complaint are as follows:

Plaintiff Manuel Agromayor ("Agromayor"), a journalist and member of the New Progressive Party, was offered employment as a Press Official attached to the office of Rep. José Granados Navedo, Minority Leader of the House of Representatives of the Commonwealth of Puerto Rico. The contract was submitted to Defendant Severo Colberg ("Colberg"), Speaker of the above mentioned legislative body, for his signature.¹ Colberg refused to sign the contract, allegedly stating that he could not accept Agromayor as an employee of the House because of what he had written in an article for the newspaper El Mundo, and because he was not a Puerto Rican. Agromayor claims that Colberg, using his position as Speaker, under color of authority and law, has acted to deny and/or infringe upon various constitutional rights guaranteed to the Plaintiff, and, therefore, he seeks damages before us pursuant to 42 U.S.C. § 1983.

Defendant moves for dismissal on the grounds that: (1) the suit against Colberg is in his official capacity and is therefore barred by the Eleventh Amendment, (2) Plaintiff has failed to join an indispensible party and (3) Defendant is absolutely immune from such an action on the basis of the common law immunity for state legislators. These arguments warrant our careful consideration.

I

The Motion to dismiss alleges that Colberg is being sued in his official capacity and that the suit is therefore barred by the Eleventh Amendment. In reading the complaint regarding this issue we find the wording to be somewhat ambiguous: At paragraph 9, Plaintiff states "At all times herein mentioned, the defendant Severo Colberg was the President (Speaker) of the House of Representatives of the Commonwealth of Puerto Rico." At paragraph 20 he states: "At all times herein mentioned, the defendant was acting in his capacity as President of the House .... and under color of law and Authority." However, the caption is addressed to "Severo Colberg, Defendant." It does not mention his official capacity. Likewise, in his motion in opposition to dismiss, Agromayor states specifically that the suit is against Colberg in his individual capacity for acts that he performed under color of law. On a motion to dismiss, the complaint is to be liberally construed. Lavoie v. Bigwood, 457 F.2d 7 (1st Cir., 1973). Plaintiff must be granted the benefit of all inferences that can be derived from the facts. Schuler v. U.S., 617 F.2d 605 (C.A.D.C.1979). The facts and allegations set forth in the complaint must be viewed in the light most favorable to the Plaintiff. Harper v. Cserr, 544 F.2d 1121 (1st Cir.1976). That Agromayor is suing Colberg in his individual capacity can be reasonably inferred from the facts in the complaint and said will be the view taken by this Court of this action. Such an interpretation makes it unnecessary for us to determine whether or not a suit against Colberg in his official capacity is barred by the Eleventh Amendment.

II

Colberg argues that, under Puerto Rico law, the "community property estate" or conjugal partnership composed of himself and his wife is the owner of property which could be directly affected by the disposition of this case. Alleging that complete relief cannot be afforded in the absence of the conjugal partnership, he asks for dismissal for failure to join an indispensable party under F.R.Civ.P. 19(a). We would remind the Defendant that the basis of this case is not diversity of citizenship, but a federal question based on violation of civil rights caused by the alleged deprivation of employment and property for reason of political affiliation and national origin. 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3 & 4). "A federal court sitting on a non-diversity case such as this does not sit as a local tribunal. In some cases it may see fit, for special reasons, to give the law of a particular state highly persuasive or even controlling effect, but in the last analysis its decision turns upon the law of the United States, not that of any state." Gannet v. First National State Bank of New Jersey, 546 F.2d 1072 (3rd Cir., 1976) cert. denied 431 U.S. 954, 97 S.Ct. 2674, 53 L.Ed.2d 270 (1977); Three Rivers Motors Co. v. Ford Motor Company, 522 F.2d 885 (3rd Cir.1975); United States v. H.E. Crain, 589 F.2d 996 (9th Cir., 1979); D'Oench, Duhme & Co. v. F.D.I.C., 315 U.S. 447, 471-472, 62 S.Ct. 676, 685-86, 86 L.Ed. 956 (1942) (Jackson, J., concurring). The entity of the conjugal partnership is created by the substantive law of Puerto Rico, namely, the Civil Code of Puerto Rico, 31 L.P.R.A. Chap. 273. It is not an entity of the federal law. Under federal law, the only alleged violator of Plaintiff's rights is Defendant Colberg, not the conjugal partnership to which he belongs, or his spouse. Therefore, we believe that under federal law it is unnecessary at this point to join the conjugal partnership as a party to a 1983 action.

III

Defendant alleges that under the common law immunity accorded state legislators, as recognized in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) and Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), he is absolutely immune from an action for damages or injunctive relief in federal court.

Tenney v. Brandhove, supra, 341 U.S. at 376, 71 S.Ct. at 788, declared that state legislators enjoy a federal common law immunity from liability for their legislative acts, that is similar in origin and rationale to that accorded Congressmen under the Speech or Debate Clause ("Clause"). This Constitutional Clause² specifically states:

"They (legislators) shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at a Session 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." (Emphasis supplied).

The reasons for the existence of this common law immunity for state legislators is clear, as appears from the federal cases:

"Moreover, under our system of federalism, the role of the state legislature is entitled to as much judicial respect as that of Congress. Congress may legislate on matters of national concern, while state legislators act on vital matters of local importance. The need for a Congress which may act free of interference by the Courts is neither more nor less than the need for unimpaired state legislatures. We show no more than a proper respect for state function, ... in holding that state legislators must be accorded a privilege similar to that of federal legislators."

Star Distributors Ltd. v. Marino, 613 F.2d 4 (2nd Cir., 1980).

The protection afforded by the Speech or Debate Clause covers "things generally done in session of the House by one of its members in relation to the business before it." United States v. Johnson, 383 U.S. 169, 179, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966), citing Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881). Legislative acts, however, are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, such other matters must be an integral part of the deliberative and communicative processes by which members participate in committee and House proceedings with respect to other questions which the Constitution places within the jurisdiction of either House. 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 deliberation". Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972).

The business of legislators is to legislate. They are absolutely immune when they are legislating, but when they act outside the "sphere of legitimate legislative activity," they enjoy no special immunity. (Emphasis supplied). See Tenney, supra, 341 U.S. at 376, 71 S.Ct. at 788. Doe v. McMillan, 412 U.S. 306, 312-313, 93 S.Ct. 2018, 2024-25, 36 L.Ed.2d 912 (1973) citing Gravel, supra, 408 U.S. at 624-625, 92 S.Ct. at 2627. The heart of the issue of absolute legislative immunity in this case thus reduces to determining whether or not...