Aponte v. Calderon
| Decision Date | 22 March 2002 |
| Docket Number | No. 01-2706.,No. 01-2705.,01-2705.,01-2706. |
| Citation | 284 F.3d 184 |
| Parties | Jorge E. APONTE; Daniel PagÁn, Plaintiffs, Appellees, v. Sila María CALDERÓN; Adolfo Krans; Conjugal Partnership, Krans-Calderón, Defendants, Appellants, David Noriega-Rodríguez; Ileana Colón-Carlo; Carmen Rita Vélez-Borrás; Pedro Galarza; Pedro López-Oliver; Angel Hermida, Defendants, Appellants. |
| Court | U.S. Court of Appeals — First Circuit |
Rafael Escalera-Rodríguez, with whom Reichard & Escalera and Néstor J. Navas-D'Acosta were on brief for appellants David Noriega-Rodríguez, Ileana Colón-Carlo, Carmen Rita Vélez-Borrás, Pedro Galarza, Pedro López-Oliver, and Angel Hermida.
John F. Nevares, with whom Carlos R. Ramírez, John F. Nevares & Associates, P.S.C., and Carlos Lugo-Fiol were on brief for appellees.
Before TORRUELLA, SELYA and LIPEZ, Circuit Judges.
Defendants-appellants challenge the district court judgment granting plaintiffs-appellees injunctive and declaratory relief. See Aponte v. Calderón, 176 F.Supp.2d 135 (D.P.R.2001). Plaintiffs-appellees originally brought suit challenging the constitutionality of the Independent Citizens' Commission to Evaluate Government Transactions ("Blue Ribbon Commission" or "Commission"), which was created by appellant Sila M. Calderón through an executive order. They alleged, inter alia, that the Commission violated appellees' rights to due process of law, as guaranteed by the Fourteenth Amendment of the United States Constitution. The district court agreed and entered a permanent injunction forbidding the Commission from engaging in future investigations without instituting trial-type procedures. Because we find that the Commission's investigation implicates no constitutionally protected liberty or property interest of the appellees, we reverse the district court's grant of injunctive and declaratory relief.
Appellant Sila María Calderón was elected Governor of the Commonwealth of Puerto Rico in November 2000. Shortly after taking office in January 2001, she promulgated Executive Order No. 2001-06 ("Order"). The Order states that there is a "pressing need" to make "proper and efficient use of public resources" and to complete "the total erradication [sic] of government corruption." To further that effort, the Order creates the "Independent Citizens' Commission to Evaluate Government Transactions ... for the purpose of evaluating significant government transactions."
The Order gives the Blue Ribbon Commission the power to evaluate transactions accomplished by the executive branch of the Puerto Rican government. These transactions may have been completed by either the current or previous administrations and must "have the potential of substantially impacting on areas such as the government's structure, the public treasury the country's economy and infrastructure, or the citizenry's trust in government institutions." To further these evaluations, the Order gives the Commission the authority to request information from natural and artificial persons, to require the assistance of the executive branch, and to issue reports to the Governor, including both the findings of any investigation and any recommendations. These recommendations may include the adoption of "new statutory or regulatory rules," the modification of existing rules, and further proceedings, either administrative, civil, or criminal, against certain persons. The Order also provides that the Commission shall operate with strict confidentiality. Only the Governor has the power to publicize the findings, recommendations, or evidence collected by the Commission.
The Governor also has the exclusive power to name Commission members. She originally appointed appellants David Noriega-Rodríguez, Ileana Colón-Carlo, Carmen Rita Vélez-Borrás, Pedro Galarza, and Pedro López-Oliver. Noriega-Rodríguez was made Chairperson. Galarza and López-Oliver have both resigned from the Commission, and appellant Angel Hermida replaced López-Oliver.1
The Commission has the power to adopt internal operating rules. Pursuant to that power, the Commission promulgated both Operating By-Laws ("By-Laws") and Guidelines for Investigation and Drafting of Reports ("Guidelines"). Only the By-Laws were made public by the Commission. The unpublished Guidelines, however, provide most of the substantive procedures that the Commission and its staff follow in conducting their investigations.2 These procedures include the ability of the Commission to request officers of the executive branch to secure the appearance and testimony of reluctant witnesses, using appropriate legal mechanisms. During interviews, the Commissioners or their staff may record testimony in a variety of ways, including handwritten notes. Witnesses are not allowed to take notes, record their testimony, or obtain copies of their statements. This is ostensibly to protect the confidentiality of the Commission's investigations. Those witnesses who are not considered suspects are not allowed to have an attorney present. However, those witnesses who are suspected of violating laws or regulations of a penal nature are to be advised of their constitutional rights, including their right against forced self-incrimination. The Guidelines also require Commissioners to report any evidence that creates more than a mere suspicion of criminal activity. The Commission, once it has verified such evidence, may refer the matter to the Puerto Rican Department of Justice.
It is also important to note what powers the Blue Ribbon Commission does not have. It does not have the power to independently initiate or file any civil, criminal, or administrative charges. It can only recommend that other agencies do so. Most importantly, the Commission cannot adjudicate criminal liability or make probable cause determinations.
The Blue Ribbon Commission has completed reports on three transactions. Two of those are implicated in this case. The first concerns the lease and purchase of a building, located at Barbosa Avenue 306, and an adjacent parking lot ("Barbosa Report"). It discusses both appellees. The second details the relationship between the Department of Natural and Environmental Resources, the Solid Waste Authority, and the Puerto Rico Infrastructure Management Group, Inc., a private entity ("PRIME Report"). It discusses only appellee Daniel Pagán. The district court concluded, after holding a hearing, that both reports "find that there is probable cause to believe that violations of Puerto Rico criminal law have occurred." Aponte, 176 F.Supp.2d at 144.
Both plaintiffs-appellees served as high-ranking Puerto Rican officials under former Governor Pedro Rosselló. Appellee Jorge E. Aponte was Director of the Office of Management and Budget. Appellee Daniel Pagán was Secretary of the Department of Natural and Environmental Resources. Both Aponte and Pagán held their positions in the Puerto Rican government until December 31, 2000, when Governor Rosselló's term ended.
The Commission interviewed appellee Aponte on April 19, 2001, regarding the Barbosa transaction. This interview occurred after Aponte received a letter at his home, requesting his appearance at a hearing. Originally, the hearing was scheduled for March 29, 2001, but Aponte did not attend due to his concerns about the Commission. Instead, he hand-delivered a letter, which requested a copy of the Commission's by-laws, the subject matter of the hearing, an opinion letter by the Puerto Rican Secretary of Justice explaining the legal basis for the Commission to compel witnesses to attend hearings, and any information on the appointment of counsel to assist him at the hearing. When he delivered the letter, the Commission's staff informed Aponte that he was not entitled to appointment of counsel. He subsequently received a copy of the Order, the By-Laws, and a letter explaining that the Commission was interested in his involvement in the Barbosa transaction. The letter also rescheduled the hearing for April 19.
Aponte attended the hearing on April 19, based in part on the assurances of the Commission's staff that his testimony was needed only to authenticate certain documents. He did not believe that he, himself, was under investigation for misconduct, and while he knew that his attendance at the hearing was not required by law, he believed that the Commission would draw negative inferences should he refuse to attend. Aponte also concluded, based on his reading of the Order and the By-Laws, that the Commission could require him to appear under compulsion of legal process should he refuse to attend voluntarily.
At the hearing, Aponte objected to the Commission as unconstitutional. He asked to take notes of the proceedings and to have a copy of the investigators' notes, but these requests were denied. Aponte rejected the Commission's request to have a stenographer record the interview. At no point during the interview did anyone advise Aponte of any constitutional rights.
Appellee Pagán was interviewed on April 25, 2001, after an armed agent of the Puerto Rico Department of Justice Special Investigations Bureau ("NIE")3 delivered a summons to Pagán's home. After receiving the summons, Pagán informed the Commission that he was willing to cooperate, despite his belief that the Commission did not have the power to compel his appearance. However, Pagán also believed, based on his former experiences, that he was "required" to appear, although not under legal compulsion. He knew of...
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