Colon Berrios v. Hernandez Agosto

• Decision Date: 07 September 1983
• Docket Number: 83-1598,Nos. 83-1597,83-1627 and 83-1628,s. 83-1597
• Citation: 716 F.2d 85
• Parties: William COLON BERRIOS, et al., Plaintiffs, Appellees, v. Miguel HERNANDEZ AGOSTO, et al., Defendants, Appellants. William COLON BERRIOS, et al., Plaintiffs, Appellants, v. Miguel HERNANDEZ AGOSTO, et al., Defendants, Appellees. William COLON BERRIOS, et al., Plaintiffs, Appellees, v. Miguel HERNANDEZ AGOSTO, et al., Defendants, Appellees. Pedro Juan Soto, et al., Intervenors, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 85

716 F.2d 85

William COLON BERRIOS, et al., Plaintiffs, Appellees, v. Miguel HERNANDEZ AGOSTO, et al., Defendants, Appellants.

William COLON BERRIOS, et al., Plaintiffs, Appellants, v. Miguel HERNANDEZ AGOSTO, et al., Defendants, Appellees.

William COLON BERRIOS, et al., Plaintiffs, Appellees, v. Miguel HERNANDEZ AGOSTO, et al., Defendants, Appellees.

Pedro Juan Soto, et al., Intervenors, Appellants.

Nos. 83-1597, 83-1598, 83-1627 and 83-1628.

United States Court of Appeals First Circuit.

Argued Aug. 22, 1983.

Decided Sept. 7, 1983.

Marcos A. Ramirez, Irizarry, Hato Rey, P.R., with whom Marcos A. Ramirez Lavandero, Ramirez & Ramirez and Jose A. Nazario, Hato Rey, P.R., were on motion for stay pending appeal for defendants, appellants.

Michael Avery, Boston, Mass., with whom Jose Antonio Lugo, Rio Piedras, P.R., Peter Berkowitz, Rio Piedras, P.R., and Rina Biaggi Garcia, Hato Rey, P.R., were on brief, for intervenors, appellants.

Richard L. Cys, Washington, D.C., with whom Maryann Clifford, James F. Hibey, Terrence J. McCartin, Verner, Liipfert, Bernhard & McPherson, Washington, D.C., and Eduardo Castillo-Blanco, Old San Juan, P.R., were on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges.

PER CURIAM.

These appeals are taken from an order of the district court enjoining the defendants and their agents: from compelling the plaintiffs to appear and testify publicly at hearings held by the Judiciary Committee of the Senate of the Commonwealth of Puerto Rico; and, from publishing documents in the defendants' possession that are covered by the protective order issued in a separate civil rights action or that are transcripts of testimony before the Committee by the plaintiffs in this case. The order was to remain in effect until the completion of a related civil trial of considerable complexity scheduled to begin in October of 1983.

While no party has raised the question we note that there exists a jurisdictional problem in this case. After the first two notices of appeal were filed in this case, the intervenors filed in the district court a timely motion for reconsideration under Rule 59(e) F.R.Civ.P. Such a motion renders ineffectual any notice of appeal filed during its pendency and voids any notice filed prior to the filing of the motion. Rule 4(a)(4) F.R.A.P.; Griggs v. Provident Consumer Discount Co., --- U.S. ----, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam).

In this case the record shows that the district judge was not available to decide the motion (in part because he was engaged in other judicial duties elsewhere). In such a case we think it proper, where time is of the essence, to regard the motion as constructively denied. Since one defendant-appellant filed a new notice of appeal 20 days after the motion for reconsideration was filed, we find that our appellate jurisdiction is established. Even were that not the case this would be an appropriate case for mandamus review and treating the appeals as petitions for a writ of mandamus, the same would be granted.

I.

The original facts underlying these appeals are fully set forth in our opinion in In re San Juan Star Co., 662 F.2d 108 (1st Cir.1981), but a summary of those facts and a description of the later developments that spawned these cases will be useful to an understanding of the issues presented in these appeals.

In the summer of 1978 two young supporters of a radical pro-independence group died in a shooting incident with police officers at a mountain locale known as Cerro Maravilla. The incident at Cerro Maravilla had and has significant implications and has been the subject of intense media coverage and popular attention.

Three official investigations into the incident have been or are being conducted. Two were conducted by the Commonwealth's Department of Justice, a third was authorized by the Commonwealth Senate and is being conducted by its Judiciary Committee. A suit was also brought under 42 U.S.C. Sec. 1983 by relatives of the deceased against the police officers involved as well as various officials of the Commonwealth (the "Soto" litigation).

The high level of publicity engendered concerns that the civil trial could not be conducted in an unbiased atmosphere. Those concerns, in turn, led to the issuance by the district court of a number of orders, the latest of which are the subject of these appeals.

Of the earlier orders, one is particularly germane to these appeals. The Senate had authorized subpoenas directed to the Department of Justice requiring the production of certain documents gathered by that Department. A second set of those same documents was the subject of a protective order in the Soto litigation. The order restricted the Soto plaintiffs and their counsel from disseminating the documents to outside parties.

While the Department of Justice was not bound by the protective order, it moved the district court to quash the subpoenas. That motion was granted but the order quashing the subpoenas was reversed by this court on appeal. In re San Juan Star Co., supra, 662 F.2d at 120. That holding rejected two alternative bases for the district court's action.

We concluded that the protective order provisions of Rule 26(c) F.R.Civ.P. did not apply to non-parties who had obtained the documents from sources independent of the federal litigation.

We also held that the circumstances of that case did not provide a basis for the exercise of an inherent power to ensure a fair trial. In making this second holding we observed that federal courts "might in a proper case be empowered to enjoin a legislature from publishing information to ensure a fair trial ...." Id. at 119.

As a result of the San Juan Star decision, the Senate Judiciary Committee gained access to a quantity of materials which, along with other documents (including the depositions of a number of the defendants in the Soto litigation) and testimony gathered in executive session, formed the basis for televised hearings which began on June 15, 1983. The Senate paid for the televising of the hearings on a commercial station and the hearings were apparently widely viewed.

On June 27, 1983, some of the Soto defendants brought this action against the members of the Senate Judiciary Committee. The action was brought under 42 U.S.C. Sec. 1983 ¹ and sought declaratory and injunctive relief substantially the same as that ultimately granted by the district court.

The Soto plaintiffs intervened in this case and along with the Senate Judiciary Committee defendants appealed from the judgment of the district court. ²

The defendants below sought a stay of the district court's order. Since these cases involve matters of high importance and since the granting of a stay could effectively terminate these cases, we set the motion for a stay for oral argument and advised the parties that we reserved the option of deciding the appeals on the merits.

After hearing argument on August 25, 1983 we concluded that these cases were ripe for decision on the merits. On August 29, 1983 we granted appellants' motion for a stay of the district court's injunction. We now reverse the judgment of the district court.

II.

We note at the outset that the district court was faced with a delicate and perplexing situation. The televised hearings and the attendant publicity created significant problems in conducting a civil trial of unusual importance free from undue bias.

The district court apparently viewed some language in our opinion in In re San Juan Star as fully defining the circumstances under which a court faced with a fair trial problem could enjoin a legislative body. While we understand the basis for that conclusion, it was incorrect.

In the San Juan Star decision we noted that state legislatures might be enjoined "in a proper case" and when certain stringent standards had been met. Because we found that the standards applied to prior restraints had not been met, we had no opportunity to discuss what "a proper case" might be. In re San Juan Star, supra, 662 F.2d at 119.

A plaintiff seeking to prove the existence of a "proper case" for enjoining state legislative activity must overcome the threshold obstacle of legislative immunity. As the district court noted, the Supreme Court has clearly held that state legislators acting in a legislative capacity are absolutely immune from the imposition of equitable remedies in a suit brought under 42 U.S.C. Sec. 1983. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 731-34, 100 S.Ct. 1967, 1974-75, 64 L.Ed.2d 641 (1980). That holding would seem necessarily to require the conclusion that this case involved a situation where legislative immunity applied and thus was not a proper case for interference with the legislative power.

Both the district court and the appellees urge a different analysis based on alternative theories.

A.

First, it is urged that while the district court's orders might have been improper under 42 U.S.C. Sec. 1983, it did not act under that provision and thus the immunity found by courts to exist under Sec. 1983 did not apply. The district court is variously described as having acted in a cause of action implied from the Seventh Amendment and the general federal question jurisdictional provision, 28 U.S.C. Sec. 1331; or under the All Writs Act, 28 U.S.C. Sec. 1651.

Under whatever provision the district court might have acted, the question is the same: may one whose cause of action under 42 U.S.C. Sec. 1983 is barred by an accepted judicial interpretation of that act, avoid that bar by recategorizing the claim?

The answer is "No." One case has suggested that where 42 U.S.C. Sec. 1983 was not available because of the Federal nature of the District of Columbia, a derivative constitutional cause of action might be available. See District of Columbia v. Carter, 409 U.S. 418, 432-33, 93 S.Ct. 602, 610, 34 L.Ed.2d 613 (1973) (dictum).

We believe that the...