ROMERO-BARCELO v. HERNANDEZ-AGOSTO No. 95-1235.
75 F.3d 23 (1996)
Carlos ROMERO-BARCELO, Plaintiff, Appellant, v. Miguel HERNANDEZ-AGOSTO, et al., Defendants, Appellees.
United States Court of Appeals, First Circuit.
Decided January 31, 1996.
Marcos A. Ramírez-Lavandero, with whom Eduardo A. Vera-Ramírez and Marcos A. Ramírez-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.
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,
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.
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,
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,
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 apply, the activity must be "`an integral part of the deliberative and communicative processes 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.'" Agromayor, 738 F.2d at 59 (quoting Gravel v. United States,
"While the core protection conferred by the Clause concerns speech or debate by a member of Congress on the floor of either the Senate or the House", id. (citing Gravel, 408 U.S. at 625, 92 S.Ct. at 2627), "the penumbra of the Clause sprawls more broadly." Id. For example, the Clause covers voting; id. (citing Kilbourn v. Thompson,
The district court concluded that the Cerro Maravilla hearings "fell well within the legitimate legislative sphere" and "that the defendants are therefore immune from any civil or criminal prosecution based on conduct directly related to the Cerro Maravilla investigations." Barcelo v. Agosto,
Id. (quoting Colon Berrios, 716 F.2d at 90).
The district court then held that all of Romero-Barcelo's "claims regarding allegedly unconstitutional procedures employed by the Committee relating to the issuance of subpoenas, the examination of witnesses, and the gathering of evidence, as well as his claims regarding the allegedly unlawful use of public funds to broadcast the hearings and regarding slanderous comments allegedly made by the defendants must be DISMISSED." Id. at 1343. The court dismissed the claims against Hernandez-Agosto and Antonio-Rigau, members of the Puerto Rico Legislature, as well as the claim against Perez-Viera, chief counsel and investigator for the Committee. Id. at 1343 n. 8 (citing Eastland v. United States Servicemen's Fund, 421 U.S. at 507, 95 S.Ct. at 1823 (Speech or Debate Clause immunity for issuance by investigative subcommittee extends to its chief counsel)). The court also rejected Romero-Barcelo's claim "that the defendants abused their positions and, solely [for] political reasons, slanted or manipulated the testimony offered during the hearings to portray the plaintiff in a negative light." Id. at 1343 (citing Tenney, 341 U.S. at 377, 71 S.Ct. at 788-89 ("The claim of an unworthy purpose does not destroy the privilege.")). The district court ruled, however, that "defendants' alleged dissemination of false, defamatory, and slanderous information about the plaintiff through press releases, interviews, and speeches occurring outside the strict scope of their legislative duties" was not protected by legislative immunity. Id. (citing Hutchinson, Gravel, and Doe).
1. Allegations of Criminal Misconduct
Appellant argues that the defendants are liable in damages under section 1983 for their alleged criminal conduct — including subornation of perjury, intimidation of witnesses and obstruction of justice during the Hearings — even assuming the Hearings were a proper legislative function. Citing to Brewster, 408 U.S. at 526, 92 S.Ct. at 2544, he relies for further support on the reasoning in Gravel, 408 U.S. at 626, 92 S.Ct. at 2627-28; "While the Speech or Debate Clause recognizes speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise criminal law in preparing for or implementing legislative acts."
Romero-Barcelo's reliance on Gravel and Brewster is misplaced, however, as those cases concerned whether a legislative immunity defense based on the Speech or Debate Clause protected Members of Congress from federal criminal prosecution. In Gillock, the Supreme Court carefully distinguished a State legislator's narrower right to absolute legislative immunity from private civil actions, which does not include immunity from federal criminal prosecution.
445 U.S. at 372-73, 100 S.Ct. at 1193. Absolute immunity from suit for civil damages under section 1983 allegedly based on criminal conduct does not necessarily immunize the legislator or his aide from federal criminal prosecution.
2. Contemporaneous Telecasting of Hearings
Appellant argues that defendants' decision to use public funds to finance live telecasts of these Hearings was not protected by absolute legislative immunity. The Supreme Court made clear, in Doe, 412 U.S. at 313-14, 93 S.Ct. at 2025-26, that the introduction of documents at an open legislative
3. Immunity of Committee Counsel
Next, appellant argues that the immunity of a legislative aide is less broad than that available to a legislator. Consequently, says appellant, the chief counsel to the Committee, defendant-appellee Perez-Viera, is not immune from suit. Appellant relies on Dombrowski v. Eastland,
Appellant argues that his complaint does distinguish between the activities of Hernandez-Agosto and Antonio-Rigau, on the one hand, and Perez-Viera on the other. Nevertheless, the relevant allegation in the complaint — that chief counsel Perez-Viera presented information at the Committee hearings, knowing it to be false and misleading — is part and parcel of the parallel allegation that all legislator-defendants used the Hearings to disseminate information about Romero-Barcelo, knowing it to be false or misleading. Thus, in applying the
B. Civil Rights Claims
We next consider the claims not barred by absolute legislative immunity.
1. Section 1983
"An actionable section 1983 claim must allege facts sufficient to support a determination `(i) that the conduct complained of has been committed under color of state law, and (ii) that [the alleged] conduct worked a denial of rights secured by the Constitution or laws of the United States.'" Rumford Pharmacy, Inc. v. City of East Providence,
a. Procedural Due Process
A viable procedural due process claim must demonstrate a "deprivation by state action of a constitutionally protected interest in `life, liberty, or property' ... without due process of law." Lowe v. Scott,
Deprivation of Liberty Interest
Romero-Barcelo alleges that the defamatory statements by defendants deprived him of a "liberty" interest in his good name and reputation. Barcelo, 876 F.Supp. at 1344. The Supreme Court has made it clear that an actionable deprivation of a liberty interest in one's reputation "must be accompanied by a change in the [victim's] status or rights (under substantive state or federal law), perhaps as a touchstone (or concrete evidence) of the fact that the injury to reputation was inflicted as part of a conscious government policy and is serious enough to interfere with other liberties of the sort suggested in Meyer [v. Nebraska,
The district court concluded that no serious harm had befallen Romero-Barcelo. Barcelo, 876 F.Supp. at 1345. It observed that he had been elected Resident Commissioner in 1992, "immediately after the last barrage of allegedly libelous statements." Id. The district court noted as well that Romero-Barcelo had lost the gubernatorial election in 1984, but it ruled that any claim based on that "serious harm," some eight years earlier, was time-barred. Id. at 1346 (citing Wilson v. Garcia,
ii. The Process Due
Romero-Barcelo claims a deprivation of his right to be free from "`abusive attacks on his honor, reputation and private or family life' as established by Article II, Section 8, of the Puerto Rico Constitution." Barcelo, 876 F.Supp. at 1346.
The process due depends in large part on the circumstances. Watson v. Caton,
It is rudimentary that a deprivation of procedural due process caused by "random, unauthorized conduct" of a State official is not actionable under section 1983 unless, amongst other things, "no adequate `post-deprivation remedy' is available under state law." Perez-Ruiz v. Crespo-Guillen,
b. The First Amendment Claim
Appellant claims violations of his First Amendment rights to freedom of speech and association. Before the district court he claimed "that his right to free speech was chilled and his right to associate with the NPP was adversely affected by the [allegedly] defamatory statements made by the defendants." Barcelo, 876 F.Supp. at 1348. The district court found, however, "that given the fact that he was elected Resident Commissioner on the NPP ticket, [Romero-Barcelo's] claims regarding injury to his right to associate with the NPP ring hollow." Id. Further, the court concluded that "there [was] no indication that the defendants compelled the plaintiff to advocate either an unpopular or any other type of
On appeal, however, Romero-Barcelo contends that he "alleged that he was singled out for ... harassment and deprivation of rights because of his beliefs and political association." The crux of this argument is that defendants' alleged conduct, both within the Hearings and without, was undertaken because of Romero-Barcelo's association with the NPP. The Supreme Court has held that the First Amendment "protects nonpolicymakers from being drummed out of public service on the basis of their political affiliation or advocacy of ideas." Correa-Martinez v. Arrillaga-Belendez,
2. Section 1985(3)
An actionable section 1985(3) claim must allege that (i) the alleged conspirators possessed "some racial, or perhaps otherwise class-based, invidiously discriminatory animus," Griffin v. Breckenridge,
The complaint alleged that the three defendants "conspired ... to launch a negative publicity campaign funded with public funds and to label [him] as an assassin and murderer in order to end his political career and enhance their own. [The] defendants allegedly used their elected political positions to keep the Committee investigations alive, and to reactivate those committee hearings at politically advantageous opportunities." Barcelo, 876 F.Supp. at 1349. The district court held these allegations insufficient to support a conspiracy claim under section 1985(3), rejecting the implicit assumption that "since the defendants are members of the opposing political party and had substantial control over the Committee hearings, they must have had a conspiracy." Id. at 1350. The court further found no allegation of an overt act, and no articulation of a "clear class-based invidious discriminatory animus behind the alleged actions of the alleged conspirators." Id. We agree that Romero-Barcelo's allegations were insufficient to support a section 1985(3) claim.
On appeal, Romero-Barcelo does not address these specific shortcomings in the complaint, choosing instead to rest upon a conclusory statement that the allegations are
For their alleged conduct within the legislative forum, we conclude that defendants were protected by absolute legislative immunity. For their conduct outside the legislative forum, the allegations were insufficient to state actionable claims under sections 1983 and 1985(3). Appellant Romero-Barcelo has no actionable procedural due process claim under section 1983, either because he had no constitutionally protected "liberty" interest, or because Puerto Rico law afforded whatever post-deprivation process may have been due. Nor did appellant have an actionable First Amendment claim, since there is no constitutional ban against the alleged conduct. Finally, appellant failed to plead all essential elements of an actionable conspiracy claim under section 1985(3).
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