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USCA1 Opinion
December 23, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
Nos. 92-1239
92-1397
MIGUEL RIVERA-PUIG,
Plaintiff, Appellee,
v.
HON. GABRIEL GARCIA-ROSARIO,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos A. Fust , U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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_____________________
Anabelle Rodr guez, Solicitor General, Department of
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Justice, for appellant.
Juan R. Marchand-Quintero for appellee.
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____________________
____________________
TORRUELLA, Circuit Judge. This appeal presents
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important constitutional issues requiring us to strike a balance
between state-created due process and privacy concerns, and
freedom of the press rights protected by the First Amendment of
the United States Constitution. Because we find the latter
paramount in this case, and in light of the Supreme Court's
decision in Press-Enterprise Co. v. Superior Court of California,
____________________ ____________________________
478 U.S. 1 (1986) ("Press Enterprise II"), we affirm the district
___________________
court's decision1 declaring unconstitutional the closure
provision of Rule 23(c) of the Puerto Rico Rules of Criminal
Procedure, P.R. Laws Ann. tit. 34, App. II R. 23(c) (1991).2
____________________
1 Reported at Rivera-Puig v. Garc a-Rosario, 785 F. Supp. 278
___________ ______________
(D. P.R. 1992).
2 Rule 23(c) of the Puerto Rico Rules of Criminal Procedure
provides:
(c) Proceeding during the hearing.
Proceeding during the hearing.
If the person appears at the preliminary
hearing and does not waive it, the
magistrate shall hear the evidence. The
___
hearing shall be held privately unless
_________________________________________
the defendant requests at the
_________________________________________
commencement thereof that it be public.
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The defendant may cross-examine witnesses
against him and may introduce evidence in
his own behalf. The prosecuting attorney
may be present at the hearing and he may
also examine and cross-examine all
witnesses and introduce new evidence.
Upon being requested to do so, the
prosecuting attorney shall put at the
disposal of the person the sworn
statements of the witnesses whom he
called to testify at the hearing that he
has in his possession. If in the opinion
of the magistrate the evidence shows that
there is probable cause to believe that
an offense has been committed and that
the defendant has committed it, the
magistrate shall forthwith hold him to
answer for the commission of the offense
To place this case in its legal context, we will first
discuss the Supreme Court's ruling in Press-Enterprise II.
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I. PRESS-ENTERPRISE II
I. PRESS-ENTERPRISE II
___________________
Section 868 of the California Penal Code required
preliminary hearings to be open to the public unless "exclusion
of the public is necessary in order to protect the defendant's
right to a fair and impartial trial." Cal. Penal Code 868
(West 1985). A defendant charged with 12 counts of murder and
subject to the death penalty requested closure of his preliminary
hearing. Defendant's unopposed motion was granted. At the
conclusion of the hearing, the magistrate denied Press
Enterprise's request for the release of the transcript of the
proceedings, and sealed the record. The state and Press-
Enterprise lost their appeal to the superior court on the grounds
that release of the transcript might prejudice defendant's right
to a fair and impartial trial.
After the defendant waived his right to a jury trial,
the superior court released the transcript. Appeals to the
higher courts in California nevertheless continued. These courts
ruled that there was no general First Amendment right of access
to preliminary hearings, and that the defendant's right to a fair
and impartial trial by a jury uninfluenced by news accounts
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in the appropriate Part and Division of
the Court of First Instance; otherwise
the magistrate shall exonerate him and
order that he be set free. . . .
(emphasis added).
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shifted the burden in favor of closure if defendant established a
reasonable likelihood of substantial prejudice.
Ultimately, the case arrived at the United States
Supreme Court. The Court noted that maintaining a criminal trial
process open to neutral observers is an important means of
assuring a fair trial as well as maintaining the appearance of
fairness. Press-Enterprise II, 478 U.S. at 7. It then discussed
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what it called the "tests of experience and logic." If a
proceeding passes these tests, a qualified First Amendment right
to public access attaches. Id. at 9. These tests are comprised
___
of two considerations: (1) whether a tradition of accessibility
to the type of hearing in question exists; and (2) "whether
public access plays a significant positive role in the
functioning of the particular process in question." Id. at 8.
___
Applying these tests to California's preliminary
hearing, the Court first found that state and federal courts have
almost uniformly conducted preliminary hearings in open court.
Id. at 10-11.
___
Under the second consideration of the tests, the Court
found that public access to the California preliminary hearings
would play a significant positive role in the actual functioning
of the process. Id. at 11-12. The Court reasoned that it had
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already determined in prior cases that public access plays a
significant role in criminal trials. Id. It then concluded that
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the "California preliminary hearings are sufficiently like trials
to justify the same conclusion." Id. at 12. In both criminal
___
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trials and the California preliminary hearing, the accused has an
absolute right to: (1) an elaborate preliminary hearing before a
neutral magistrate; (2) personally appear at the hearing; (3)
representation by counsel; (4) cross-examine hostile witnesses;
(5) present exculpatory evidence; and (6) exclude illegally
obtained evidence. Id. at 12-13. In addition, in the California
___
preliminary hearing, if the magistrate finds probable cause, he
binds the accused over for trial, which in most cases leads to a
guilty plea. Consequently, "the preliminary hearing is often the
final and most important step in the criminal proceeding," and
"in many cases provides 'the sole occasion for public observation
of the criminal justice system.'" Id. (quoting San Jose Mercury-
___ _________________
News v. Municipal Court, 638 P.2d 655, 663 (1982)). The Court
____ _______________
commented that the very absence of a jury in these proceedings
makes access even more important as "an inestimable safeguard
against corrupt or overzealous prosecutor[s] and . . . compliant,
biased, or eccentric judge[s]." Id.
___
Accordingly, the Court ruled that proceedings must
remain open unless specific, on-the-record findings demonstrate
that "'closure is essential to preserve higher values and is
narrowly tailored to serve that interest.'" Id. at 13-14
___
(quoting Press-Enterprise Co. v. Superior Court ("Press-
_____________________ ________________ ______
Enterprise I"), 464 U.S. 501, 510 (1984)). Against this legal
_____________
backdrop we consider the present case.
II. FACTUAL BACKGROUND
II. FACTUAL BACKGROUND
__________________
On April 4, 1991, Miguel Rivera-Puig ("Rivera-Puig"), a
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newspaper reporter for the San Juan, Puerto Rico daily El Vocero
_________
de Puerto Rico ("El Vocero"), sought access to a preliminary
_______________ _________
hearing before the Hon. Gabriel Garc a-Rosario, a district court
judge of the Commonwealth of Puerto Rico. Rivera-Puig filed a
written request, as a newspaper reporter, seeking physical access
to the proceedings, or a recording of the hearing.3 Judge
Garc a-Rosario denied this request. Rivera-Puig requested access
to another preliminary hearing before the same judge on January
16, 1992. The judge also denied this request.
Appellant candidly admits that the exclusion of the
press and public from preliminary hearings is the rule, rather
than the exception, pursuant to the requirements of Rule 23(c).
In the face of this barrier Rivera-Puig went in search of legal
redress for his federal constitutional claim.
III. THE DISTRICT COURT PROCEEDINGS
III. THE DISTRICT COURT PROCEEDINGS
______________________________
On January 17, 1992, Rivera-Puig filed an action in the
United States District Court for Puerto Rico seeking a
declaratory judgment that the Rule 23 closure provision was
unconstitutional and an injunction against enforcement of the
rule. Although the suit named Judge Garc a-Rosario as the
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3 Rivera-Puig, who has worked for El Vocero since 1979, made
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several prior similar requests. The local courts steadfastly
denied him admission to preliminary hearings pursuant to Rule
23(c).
Puerto Rican preliminary hearings generally are not recorded.
There is thus no opportunity for post-hearing access to these
proceedings. It should be noted that in fiscal years 1987-1988,
28,796 preliminary hearings were held in the courts of Puerto
Rico. Rivera-Puig, 785 F. Supp. at 282.
___________
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defendant, the plaintiff also served the complaint on the
Secretary of Justice of the Commonwealth and the Director of the
Courts Administration of Puerto Rico. In a motion filed with the
complaint, Rivera-Puig claimed that two preliminary hearings
would soon take place involving charges against prominent public
officials,4 but that the identity of the presiding judges was
unknown until the day of the hearings. Thus, it was difficult to
challenge the closure of hearings beforehand. Because he wanted
access to these hearings, Rivera-Puig sought an expedited hearing
to decide the validity of the closure provisions of Rule 23.
The hearing was held on January 23, 1992. In addition
to the facts previously stated, the district court heard the
testimony of Manny Su rez, a reporter for the San Juan English
language daily, The San Juan Star. Su rez testified that on
___________________
January 22, 1992 he was denied access to a review of a
preliminary hearing determination held in the San Juan part of
the Superior Court of Puerto Rico pursuant to Rule 24(c) of the
Puerto Rico Rules of Criminal Procedure.5
____________________
4 A preliminary hearing had been scheduled for February 3, 1992
regarding criminal charges against the Speaker of the House of
Representatives of Puerto Rico's Legislature. Similar
proceedings were scheduled for January 30, 1992, and March 17,
1992 involving criminal charges against an Assistant
Superintendent of Police. Both cases were highly charged with
public interest throughout Puerto Rico.
5 Rule 24 governs a proceeding which may be held after a
preliminary hearing. Subdivision (c) allows the prosecuting
attorney to resubmit the case, using the same or different
evidence, to a judge in the superior court if the judge in the
Rule 23 preliminary hearing found no probable cause or found
probable cause for a lesser offense than the one charged. See
___
Pueblo v. Cruz-Justiniano, 116 P.R. Dec. 28 (Official
______ _______________
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The district court also learned of three local court
actions involving the validity of Rule 23(c). In the first of
these suits, El Vocero de Puerto Rico v. Estado Libre Asociado de
________________________ ________________________
Puerto Rico, Civil Appeal AC-90-191, (the "El Vocero appeal"),
___________ __________
the superior court decided in favor of the rule's
constitutionality on January 29, 1990. An appeal went to the
Supreme Court of Puerto Rico where it was pending resolution
since February 1, 1991. Appellants twice moved that court for
expedited resolution and sought mandamus against the seven
justices of the Supreme Court of Puerto Rico, moving for decision
of the submitted appeal. The court rejected these efforts in a
cryptic ruling dated January 22, 1992.6
The second suit involving Rule 23(c) was Pueblo de
__________
Puerto Rico v. Lara-Imbert, CE-91-235 (June 28, 1991), in which
___________ ___________
the Supreme Court of Puerto Rico reversed a superior court ruling
which, relying on Press-Enterprise II, refused closure of the
___________________
preliminary hearing. That decision, however, was based on a
perceived lack of a "case and controversy," not on the merits.
A third case, El Vocero de Puerto Rico v. Hon. Carlos
_________________________ ___________
Cab n-Garc a, 92 J.T.S. 1 at 9121 (1992), was dismissed by the
____________
____________________
Translations at 35) (1984); Alvarez v. Tribunal Superior, 102
_______ __________________
P.R. Dec. 236 (Off. Trans. at 296) (1974). Procedures under Rule
24 are not considered appeals from the judge's ruling but rather
are independent hearings. Cruz-Justiniano, 116 P.R. Dec. at 30
_______________
(Off. Trans. at 38). See also Rivera-Puig, 785 F. Supp. at 281
________ ___________
n.5.
6 The court concluded that it lacked jurisdiction to issue a
writ of mandamus against itself and that the appeal was receiving
the priority merited by the important nature of the controversy
in question.
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Supreme Court of Puerto Rico for lack of jurisdiction.
In a comprehensive and well-founded opinion, the
federal district court decided the present case on January 31,
1992. The district court ruled that: (1) the doctrine of
"judicial immunity did not bar the issuance of prospective
injunctive relief against a judicial officer acting in [his]
judicial capacity," (quoting Pulliam v. Allen, 466 U.S. 522, 541-
_______ _____
42 (1984)); (2) an Article III "case and controversy" existed
between Rivera-Puig, who was denied access to the preliminary
hearings, and Judge Garc a-Rosario who enforced the closure
provisions of Rule 23; (3) abstention under Younger v. Harris,
_______ ______
401 U.S. 37 (1971), was inappropriate because plaintiff did not
seek an injunction of any criminal proceeding, but rather was
requesting access to future preliminary hearings; (4) abstention
pursuant to Colorado River Water Conservation District v. United
___________________________________________ ______
States ("Colorado River"), 424 U.S. 800 (1976), was inappropriate
______ ______________
because the "exceptional circumstances" alluded to in that case
were not present in this one; and on the merits (5) the closure
provision of Rule 23(c) fell squarely within the prohibition of
Press Enterprise II. Notwithstanding this ruling, the district
____________________
court refused to issue an injunction because it was "sure that
the Puerto Rico judiciary [would] comply with this declaration
without [the need for] further compulsion." Rivera-Puig, 785 F.
___________
Supp. at 290.
On February 12, 1992, Rivera-Puig was again refused
entry to several preliminary hearings despite the local judges'
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knowledge of the district court's ruling. Thus, he filed a
motion with the district court renewing his request for
injunctive relief.7 The district court judge again concluded
that "Rule 23(c)'s closure provision flagrantly and patently
violate[d] express constitutional precedent by the Supreme Court
of the United States," and that this violation was causing
"[g]reat and immediate irreparable first amendment injury." Id.
___
at 292. Yet, he again refused to issue the injunction,
expressing pious hope that the "Puerto Rico judiciary, a
traditionally responsible institution," would comply with the
decision without the need for "the strong remedy of injunction."
Id. at 292-93.
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Defendant and the intervenor, the Department of Justice
of the Commonwealth,8 appealed, raising three issues: (1)
whether the district court lacked Article III jurisdiction in
that defendant-appellant has no interest adverse to that of
Rivera-Puig; (2) whether the district court should have abstained
from hearing the case pursuant to Younger, 401 U.S. 37, Colorado
_______ ________
River, 424 U.S. 800, or Railroad Commission of Texas v. Pullman
_____ ____________________________ _______
____________________
7 The motion was accompanied by a sworn statement setting out
the facts previously described as well as a newspaper account
which appeared in the February 12, 1992 San Juan Star quoting the
_____________
Chief Justice of the Supreme Court of Puerto Rico as stating that
"[e]ach individual judge is free to follow the [federal court]
decision, which is persuasive, but is not binding." Robert
Friedman, Andreu: Hearings Ruling Not Binding, San Juan Star,
______________________________________ ______________
February 12, 1992, at 6.
8 We found nothing in the record that granted the Department of
Justice intervenor status. However, they have acted as
intervenors throughout the case, and we will treat them as such.
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Co. ("Pullman"), 312 U.S. 496 (1941); and (3) whether Rule 23(c)
___ _______
runs contrary to Press Enterprise II.
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Before discussing these issues we will recount the most
recent development in this convoluted case.
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IV. THE EL VOCERO APPEAL
IV. THE EL VOCERO APPEAL
____________________
On July 8, 1992, the Supreme Court of Puerto Rico
decided the El Vocero appeal. El Vocero de Puerto Rico, et al.
__________ _________________________________
v. Estado Libre Asociado de Puerto Rico, 92 J.T.S. 108 (July 8,
_____________________________________
1992).9 The court found that the preliminary hearing
promulgated by Rule 23 differed from the California one found to
be invalid by Press Enterprise II, and ruled it constitutional.
____________________
It is crystal clear that we lack appellate or non-habeas corpus
jurisdiction over decisions of the courts of any state, including
the Commonwealth of Puerto Rico. See District of Columbia Court
___ __________________________
of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity
___________ _______ ______ ________
Trust Co., 263 U.S. 413 (1923). However, the El Vocero appeal is
_________ _________
at the heart of many of appellants' arguments. We thus discuss
this ruling, not in an appellate or supervisory posture, but to
garner the Puerto Rico Supreme Court's definitive position on
Rule 23(c) procedure and to determine how that position affects
the federal proceedings.
The case concerns the same issue as the present one:
the constitutionality of Rule 23(c); however, the El Vocero and
_________
another reporter brought the case.
The Puerto Rico Supreme Court, by a 4 to 3 vote,
concluded that criminal defendants' right to privacy ("derecho a
la intimidad") and to a fair and impartial trial override any
right of access by the public or press in the Rule 23(c)
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9 This is the Spanish language citation as the decisions are no
longer routinely translated to English.
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preliminary hearing.
A large part of the majority opinion is a historical
and philosophical discourse regarding the Puerto Rican legal
system during the Spanish regime as it relates to Press-
______
Enterprise II and California's preliminary hearing. According to
_____________
the court, California's preliminary hearing had been open to the
public since its inception in 1872. However, the court found
this not to be the case in Puerto Rico. See El Vocero, 92 J.T.S.
___ _________
at 9832-42. According to the court, shortly after the change in
sovereignty in 1898, Puerto Rico adopted California's Criminal
Procedure Code except for those provisions dealing with
preliminary hearings. Id. at 9842 (citation omitted). It was
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not until 1964 that "'fundamentally inspired' by the federal
______________________
rule," Rule 23 was adopted. Id. at 9842. The court then engaged
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in a comparative analysis of the Puerto Rican and Californian
preliminary hearings, concluding that the local one, contrary to
the one in California, "is a limited procedure, investigative-
judicial in nature, which does not resemble a trial sufficiently
to have Press-Enterprise II apply." Id. at 9846.
___________________ ___
Interestingly enough, however, the court opinion then
applied the Press-Enterprise II experience and logic tests, id.
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at 9847, an analysis which would seem appropriate before rather
than after reaching a conclusion under that case. Balancing the
right to privacy in the Puerto Rico Constitution,10 and the
right to a fair trial, against the right of access by the press
____________________
10 See P.R. Const., art. II, 8.
___
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and public to the preliminary hearing, the Puerto Rican court
reiterated the validity of the closure provision of Rule 23(c).
Id. at 9847-52.
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V. LEGAL ANALYSIS OF THE PRESENT APPEAL
V. LEGAL ANALYSIS OF THE PRESENT APPEAL
____________________________________
A. ARTICLE III JURISDICTION
A. ARTICLE III JURISDICTION
On appeal, appellants argue that "the district court
lacked jurisdiction to entertain the complaint filed against
defendant-appellant in his official capacity because the parties
have no adverse legal interest for Article III purposes or no
actual controversy within the meaning of the Declaratory Judgment
Act is present." Appellants' Brief at p. 11. Appellants never
raised this issue before the district court. Their original
Article III "case or controversy" argument asserted only that
Rivera-Puig had not personally suffered any actual or threatened
injury.11 Because jurisdictional issues can be raised at any
stage of a federal case, Morrison v. Olson, 487 U.S. 654, 669-70
________ _____
(1988), we address this new argument even though we consider it
disingenuous.
In every recent major Supreme Court case involving
challenges to court rules, the enforcing court was a party
defendant. See Press-Enterprise II, 478 U.S. 1 (1986) (Superior
___ ___________________
Court of California); Press-Enterprise I, 464 U.S. 501 (1984)
__________________
(Superior Court of California); Pulliam v. Allen, 466 U.S. 522
_______ _____
____________________
11 We note that appellants' original claim lacks merit. The
district court correctly found that Rivera-Puig suffered actual
or threatened injury in that he was prevented from exercising his
qualified First Amendment right of access.
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(1984) (Magistrate for the County of Culpeper, Virginia); Globe
_____
Newspaper Co. v. Superior Court for County of Norfolk, 457 U.S.
_____________ _____________________________________
596 (1982) (Superior Court of Norfolk County, Massachusetts). In
fact, in appellants' Motion to Dismiss before the district court,
among the grounds urged as a basis for that relief was
plaintiff's alleged failure to join as indispensable parties "the
superior courts which are entertaining the criminal actions."
See Motion to Dismiss, at 1-2.
___
Moreover, Judge Garc a-Rosario, as the enforcer of the
________
Rule 23(c) closure provisions, has an interest adverse to those
seeking access to preliminary hearings conducted before him. See
___
Pulliam v. Allen, 466 U.S. 522 (1984) ( 1983 action against
_______ _____
county magistrate to prevent prospective enforcement of her
___________
practice of incarcerating persons waiting trial for
nonincarcerable offenses was proper); Supreme Court of Virginia
__________________________
v. Consumers Union of United States, Inc., 446 U.S. 719, 736
________________________________________
(1980) (Virginia Supreme Court and its chief justice, in his
individual and official capacity, were proper defendants in a
1983 action for declaratory and injunctive relief against
enforcement of court-promoted rules).
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Appellants characterize Judge Garc a-Rosario's actions
with respect to the closure provisions of Rule 23(c) as those of
"a neutral adjudicator." By this allegation appellants seek to
invoke In re Justices of the Supreme Court of Puerto Rico ("In re
__________________________________________________ _____
Justices"), 695 F.2d 17, 21 (1st Cir. 1982), in which we held
________
that "ordinarily, no 'case or controversy' exists between a judge
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who adjudicates claims under a statute and a litigant who attacks
the constitutionality of that statute." In that case, however,
both adjudicative and enforcement functions of the Puerto Rico
justices were at issue. In re Justices prohibits a suit against
______________
Judge Garc a-Rosario for any actions related to his adjudicatory
functions. However, it also ruled that, if judges possess
administrative responsibilities, they are proper parties for
"case or controversy" purposes on those issues. Id. at 27; see
___ ___
also Consumers Union, 446 U.S. at 734-37 (judges can be sued for
____ _______________
declaratory and injunctive relief in connection with their
enforcement of court rules).
Judge Garc a-Rosario is an adjudicator with respect to
criminal defendants that come before him in Rule 23 hearings.
With respect to members of the public seeking access to those
hearings, however, he is an enforcer or "administrator." Thus,
Judge Garc a-Rosario is a proper party in this case under In re
_____
Justices.
________
Moreover, there are two appellant parties in the
___
present case, Judge Garc a-Rosario and the commonwealth's chief
___
enforcement officer, the Secretary of Justice, who has assumed
intervenor status. See "Notice of Appeal," "Amended Notice of
___
Appeal," and "Motion in Opposition to Urgent Motion under FRCP
Rule 52(b) Requesting Injunctive Relief and Hearing Thereof."
Thus, the district court had Article III jurisdiction even if
Judge Garc a-Rivera was an improper party under In re Justices.
______________
We thus come to neuralgic issues involving principles
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of federalism and comity that wander through the El Vocero appeal
_________
like meteors lost in space, and which we must solve before we are
free to consider more mundane questions.
B. ABSTENTION AND RELATED MATTERS12
B. ABSTENTION AND RELATED MATTERS
Appellants argue that the district court should have
abstained from hearing the case because the El Vocero case was
__________
pending in the Puerto Rico courts. Appellants offer three
principle cases in support of that argument: Younger, 401 U.S.
_______
37, Colorado River, 424 U.S. 800, and Pullman, 312 U.S. 496.
______________ _______
1. Younger Abstention.
1. Younger Abstention.
_______
Younger, 401 U.S. at 43-54, counsels against federal
_______
court injunctions of state criminal proceedings pending against
the federal plaintiff, absent special circumstances. Huffman v.
_______
Pursue, Ltd., 420 U.S. 592, 604 (1975), extended this principle
____________
____________________
12 Res judicata, estoppel, and similar matters are not at issue.
At oral argument, appellants specifically disclaimed these
defenses. That is just as well, as they are affirmative defenses
that are waived unless raised in the answer. See Fed. R. Civ. P.
___
8(c); Badway v. United States, 367 F.2d 22, 25 (1st Cir. 1966).
______ _____________
Appellants failed to raise these defenses in their answer.
Moreover, even if appellants had properly raised these
defenses, it is doubtful that they would have been available in
this case. Federal courts must look to state law to see what
effect will be given to state court judgments. Allen v. McCurry,
_____ _______
449 U.S. 90, 96 (1980); Schneider v. Colegio de Abogados de
_________ _______________________
Puerto Rico, 546 F. Supp. 1251, 1269 (D.P.R., 1982). Puerto Rico
___________
requires the parties in each case to be identical for these
defenses to apply. P.R. Laws Ann. tit. 21, 3343 (1991).
Neither plaintiff nor defendant in the present case are parties
in the El Vocero case. That action is not a class action, and
_________
the interests of a newspaper are not necessarily the same of
those of a reporter. Thus, the required "perfect identity of
parties" does not exist in this case. See In re Justices, 695
___ _______________
F.2d at 26 (where some plaintiffs in federal suit did not
participate in previous state suit, claims in federal suit not
barred by res judicata or collateral estoppel).
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to state civil enforcement cases pending against the federal
plaintiff. The Supreme Court further extended the doctrine to
civil proceedings pending against the federal plaintiff which:
(1) are judicial in nature; (2) concern an important state
interest; and (3) afford the federal plaintiff an opportunity to
raise federal defenses.13 Middlesex Ethics Comm. v. Garden
________________________ ______
State Bar Ass'n., 457 U.S. 423, 432 (1981). Finally, the Supreme
________________
Court held that the doctrine includes state criminal cases
pending against individuals who have interests that are
intertwined with the federal plaintiff's interests. Hicks v.
_____
Miranda, 422 U.S. 332, 348 (1974). Collectively, these cases
_______
establish the Younger abstention doctrine.
_______
The Younger abstention doctrine does not permit
_______
abstention in the present case because the district court's
ruling did not enjoin or interfere with any state proceeding
pending against Rivera-Puig or anyone whose interests are
intertwined with his. The criminal cases that Rivera-Puig wishes
to attend are future preliminary hearings of third-person
criminal defendants. Cf. Bettencourt v. Board. of Registration
___ ___________ ______________________
in Medicine, 904 F.2d 772 (1st Cir. 1990). These defendants have
___________
no relation whatsoever to Rivera-Puig.
Similarly, the El Vocero case was not pending against
_________ _______________
____________________
13 Because the El Vocero proceeding is not a criminal or civil
_________
enforcement case, and it is not "uniquely in the furtherance of
the state courts' ability to perform their judicial functions,"
New Orleans Pub. Serv., Inc. v. New Orleans, 491 U.S. 350, 368
______________________________ ___________
(1988), we doubt that the present case implicates the type of
important state interest contemplated in Middlesex Ethics Comm..
_______________________
However, we need not reach that issue today.
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Rivera-Puig or someone whose interests were intertwined with his.
___________
Appellants point out that Rivera-Puig's employer, who brought the
El Vocero case, had similar interests as Rivera-Puig. See Hicks,
_________ ___ _____
422 U.S. at 348-50 (theater employees being prosecuted in state
court had intertwining interests with theater which filed suit in
federal court to enjoin proceedings against them). However, the
proceedings in El Vocero were not pending against El Vocero.
_________ __________________________
Kercad -Mel ndez v. Aponte-Roque, 829 F.2d 255, 259 (1st Cir.
________________ ____________
1989). "In the paradigm situation calling for Younger restraint,
_______
the state defendant brings a federal action challenging the
statute [which is simultaneously being applied against him]."
Fern ndez v. Tr as Monge, 586 F.2d 848, 851 (1978); see, e.g.,
_________ ___________ ___ ____
Penzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (federal plaintiff
___________ ____________
seeking to enjoin state plaintiff from enforcing judgment against
him); Moore v. Sims, 442 U.S. 415 (1979) (federal plaintiffs
_____ ____
seeking to enjoin state proceedings against them for child
abuse); United Books, Inc. v. Conte, 739 F.2d 30 (1984) (federal
__________________ _____
plaintiff seeking to enjoin future prosecutions against it). In
the present case, El Vocero brought the state court lawsuit to
_______
determine the constitutionality of Rule 23. The state court in
El Vocero was not applying Rule 23 against Rivera-Puig. Thus,
__________
even if its interests were intertwined with Rivera-Puig's, the
present situation is not the type contemplated by the Younger
_______
abstention doctrine.
The best that can be said in appellants' favor is that
a parallel state suit, involving parties with similar interests,
-19-
has been decided in a manner adverse to Rivera-Puig's claims in
the federal action. To find that the district court in the
present case should have abstained because of the El Vocero case
_________
would make abstention the rule rather than the exception. Iowa
____
Mut. Ins. v. LaPlante, 480 U.S. 9, 22 (1987) (Stevens, J.,
__________ ________
concurring in part and dissenting in part) ("The mere fact that a
case involving the same issue is pending in another court has
never been considered sufficient reason to excuse a federal court
from performing its duty 'to adjudicate a controversy properly
before it.'") (citation omitted); County of Allegheny v. Frank
___________________ _____
Mashuda Co., 360 U.S. 185, 188 (1959); McClellan v. Carland, 217
____________ _________ _______
U.S. 268, 282 (1910) ("pendency of an action in the state court
is no bar to proceedings concerning the same matter in the
Federal court having jurisdiction"). The "mere potential for
conflict in the results of adjudication does not, without more,
warrant staying exercise of federal jurisdiction." Colorado
________
River, 424 U.S. at 816-17 (citing England v. Medical Examiners,
_____ _______ _________________
375 U.S. 411, 415 (1964)).
Last, but not least, there are extraordinary reasons
present in this case which militate against our restraining
federal court action. First, we believe that Rivera-Puig had a
clear First Amendment right which is being flagrantly violated by
the commonwealth authorities. See Playboy Enter. v. Public Serv.
___ ______________ ____________
Comm'n, 906 F.2d 25, 31 (1st Cir. 1990) (there is a "willingness
______
of federal courts, including the Supreme Court, to entertain
declaratory and injunctive actions against prospective
-20-
enforcement of state laws which threaten to discourage
expression"). Second, the nature of the matters being decided in
the preliminary hearings in the commonwealth courts to which
Rivera-Puig sought access were not only highly charged with
public interest, but were also unique and non-recurring. Thus,
time was of the essence in determining Rivera-Puig's
constitutional rights. Third, the matters had been pending
before the commonwealth courts for an inordinate length of time,
for no reason apparent from the record. These factors
additionally counsel against Younger abstention in this case.
_______
2. Colorado RIVER Abstention.
2. Colorado RIVER Abstention.
______________
Under Colorado River, 424 U.S. at 813 (citing County of
______________ _________
Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89 (1959)), a
_________ __________________
federal court may ordinarily abstain under exceptional
circumstances. Because a "federal court's duty to exercise
jurisdiction is relaxed in the declaratory judgment context,"
Fuller Co. v. Ram n I. Gil, Inc., 782 F.2d 306, 308-09 n.3 (1st
__________ ___________________
Cir. 1986), a court may abstain in declaratory judgments under
less than exceptional circumstances. Id.
___
Recently, in Burns v. Watler, 931 F.2d 140, 146 (1st
_____ ______
Cir. 1991), we identified a number of factors that have emerged
as the core of the Colorado River abstention doctrine:
______________
(1) whether either court has assumed
jurisdiction over a res; (2) the
inconvenience of the federal forum; (3)
the desirability of avoiding piecemeal
litigation; (4) the order in which the
forums obtained jurisdiction; (5) whether
federal law or state law controls; and
(6) whether the state forum will
-21-
adequately protect the interests of the
parties. . . .
(citations omitted). We also found that we should consider the
principles underlying removal jurisdiction and whether the
federal litigation is contrived or vexatious.14 Id.
___
This list is not exhaustive, id., and a strict
___
numerical scorecard of these points is not determinative.
However, it is helpful in assessing whether abstention is
appropriate. In balancing these factors, we conclude that they
do not favor abstention. First, there is no res involved.
Second, we can perceive no additional inconvenience from
litigating in the federal forum as opposed to the commonwealth.
Third, there is no piecemeal litigation because each case is
self-contained and involves different parties and facts. Fourth,
federal law controls the outcome of the underlying issue. Fifth,
there is no allegation or evidence that the federal litigation is
vexatious or contrived, and this case was not removed from the
state courts.
Moreover, the sequence in which the forums obtained
jurisdiction is irrelevant because this litigation and the El
__
Vocero case are not identical. There are different plaintiffs
______
and different defendants, and the El Vocero case is not a class
_________
action. Furthermore, although the legal principles are the same,
the factual basis giving rise to the present case, and those in
____________________
14 These factors "run substantially parallel to the criteria
that historically have been deemed relevant in determining
whether to accept or decline jurisdiction over a [declaratory
judgment action]." Fuller Co., 782 F.2d at 308-09 n.3.
__________
-22-
the El Vocero case, differ. Finally, the right of accessibility
_________
espoused by Press-Enterprise II is not limited to the press, but
___________________
also includes the "general public." Press-Enterprise II, 478
____________________
U.S. at 8. Thus, Rivera-Puig, either in his capacity as a
professional reporter, or as part of the "general public," should
not be restricted in bringing a federal suit to protect against
the violation of his constitutional rights, irrespective of other
___
suits filed by other members of the press or general public.
_____
With respect to whether the state forum will adequately
protect the interests of the parties, although some of the events
reported in this case are disturbing indeed, we refuse, at least
as the record now stands, to "rule on the assumption that
[commonwealth] judges will not be faithful to their
constitutional responsibilities." Huffman v. Pursue, Ltd., 420
_______ ____________
U.S. at 611; see also In re Justices, 695 F.2d at 23, ("[I]t is
_________ ______________
ordinarily presumed that judges will comply with a declaration of
a statute's unconstitutionality without further
compulsion.").15
____________________
15 We do not question the power of the commonwealth courts to
reach their own conclusions in the separate commonwealth
proceedings. Although we do not believe that the Rule 23(c)
closure provisions are in any way ambiguous, the El Vocero
__________
opinion is helpful because it definitively expresses the views of
the highest Commonwealth court regarding its view of the Rule 23
___
proceedings and of the validity of the closure provisions of Rule
23(c), thus leaving no doubt as to how it will be interpreted in
that jurisdiction. Cf. Huffman, 420 U.S. at 616 n.2 ("Abstention
____ ___ _______
[may be] appropriate where authoritative resolution by state
courts of ambiguities in a state statute is sufficiently likely
to avoid or significantly modify federal questions raised by the
statute. . . . Abstention is justified in such cases primarily
by the policy of avoidance of premature constitutional
adjudication.").
-23-
In conclusion, the Colorado River factors do not
_______________
warrant abstention in the present case.
3. Pullman Abstention.
3. Pullman Abstention.
_______
Appellants contend that the district court should have
abstained under the doctrine enunciated in Pullman. Appellants
_______
have waived this argument by failing to raise it before the
district court. E.g., Boston Celtics Ltd. Partnership v. Shaw,
____ _______________________________ ____
908 F.2d 1041, 1045 (1st Cir. 1990). However, even had
appellants properly argued for Pullman abstention below, the
_______
argument would fail.
Under Pullman, 312 U.S. at 501, federal courts should
_______
abstain when state law is uncertain, and a clarification of the
law in a pending state court case might make the federal court's
constitutional ruling unnecessary. The Pullman doctrine rests on
_______
the desirability of having federal courts avoid unnecessary
rulings on constitutional issues. Wright, Miller & Cooper,
Federal Practice and Procedure, 4241 at 33 (2d ed. 1988).
______________________________
To warrant Pullman abstention: (1) there must be
_______
substantial uncertainty over the meaning of the state law at
issue; and (2) there must be a reasonable possibility that the
state court's clarification of the law will obviate the need for
a federal constitutional ruling. Hawaii Housing Authority v.
_________________________
Midkiff, 467 U.S. 229, 236-37 (1983).
_______
When the federal claim is not entangled with
complicated unresolved state law questions, abstention is
____________________
-24-
inappropriate. Wisconsin v. Constantineau, 400 U.S. 433, 438
_________ _____________
(1971). Indeed, abstention in cases where state law questions
are unambiguous is impermissible because it "would convert
abstention from an exception into a general rule." Examining Bd.
_____________
of Engineers, Architects & Surveyors v. Flores de Otero, 426 U.S.
____________________________________ _______________
572, 598 (1976); see also Harris County Comm'rs. Court v. Moore,
________ ____________________________ _____
420 U.S. 77, 84-85 (1975). A federal court should not abstain
simply to give a state court the first opportunity to vindicate
federal rights. McNeese v. Board of Education, 373 U.S. 668, 672
_______ __________________
(1963).
No uncertainty surrounds the meaning of Rule 23(c)'s
closure provision. The rule explicitly states that "[t]he
[preliminary] hearing shall be held privately unless the
___________________________
defendant requests at the commencement thereof that it be
public." (emphasis added). This issue has long been pending in
the commonwealth courts, and Rivera-Puig and the public have been
suffering irreparable constitutional harm by appellants' refusal
to comply with the law of the land.
Moreover, "[a] district court stay pursuant to Pullman
_______
abstention is entered with the expectation that the federal
litigation will resume in the event that the plaintiff does not
obtain relief in state court on state-law grounds." Moses H.
_________
Cone Memorial Hosp. v. Mercury Construction Corp., 460 U.S. 1, 10
___________________ __________________________
n.9 (1983); see also England v. Louisiana State Bd. of Medical
________ _______ _______________________________
Examiners, 375 U.S. 411 (1964). Even after a Pullman stay,
_________ _______
Rivera-Puig would be back in federal court after the El Vocero
_________
-25-
decision.
Abstention, under any of its multiple doctrines, was
inappropriate in this case.16 We thus arrive at the central
issue of the case, the constitutional validity of the closure
provisions of Rule 23(c).
C. RULE 23(c)
C. RULE 23(c)
Having determined that this controversy is properly
before us, we are duty-bound to independently assess the
constitutionality of Rule 23(c).17 Press-Enterprise II, 478
___________________
U.S. at 7.
Rights protected by the Free Speech Clause of the First
Amendment apply in Puerto Rico. Posadas de Puerto Rico
__________________________
____________________
16 Appellants also suggest that the factors elaborated by this
court in El D a v. Hern ndez Col n, 963 F.2d 488 (1st Cir 1992),
______ _______________
to guide the discretion of district courts in determining whether
to grant declaratory relief require us to reverse the district
court's grant of declaratory relief here. These factors include:
(1) the general policy that unsettled questions of constitutional
law should be addressed only when absolutely necessary; (2) the
extent to which a federal case is ripe for adjudication; (3) the
desirability of abstention; (4) comity between federal and
commonwealth courts; and (5) the equity-like nature of the
action. Id. at 494-98. For the reasons discussed herein, we
___
find El D a distinguishable from the facts of the present case.
______
Rather than compelling us to reverse the district court's grant
of declaratory relief, we think that the principles elaborated in
El D a support the district court's conclusion that declaratory
______
relief was warranted.
17 As we have indicated, the Puerto Rican Supreme Court's vision
of the Rule 23(c) preliminary hearing aids our analysis.
However, Spanish 19th century criminal procedure cannot be the
litmus test against which we measure the validity of the rule.
Indeed, even Spain's constitutional courts look to the United
States Supreme Court for precedent. See M. Rodr guez Pi ero, Los
___ ___
Tribunales Constitucionales en Europa, 57 Rev. Jur. U.P.R. 5, 31
_____________________________________
(1988) (The author is an associate justice on the Constitutional
Court of Spain).
-26-
Associates v. Tourism Co., 478 U.S. 328, 331 (1986). Thus the
__________ ___________
principles espoused in Press-Enterprise II have full vigor in
___________________
this case, and we must apply the experience and logic tests. See
___
Press-Enterprise II, 478 U.S. at 9.
___________________
Under these tests, the first consideration is whether
there is a tradition of accessibility to the Rule 23(c)
preliminary hearing. In El Vocero, the Puerto Rico Supreme Court
_________
concluded that Puerto Rico's preliminary hearings have always
been private. However, Press-Enterprise II, 478 U.S. at 10,
____________________
refers to the experience in that type or kind of hearing
______________
throughout the United States, not the experience in only one
jurisdiction. Indeed, the Puerto Rico preliminary hearings
essentially duplicate the California and federal preliminary
hearings, which the Supreme Court determined have almost
uniformly been open. Id. at 10-11. Thus, there is a tradition
___
of openness that applies to the Rule 23(c) preliminary hearing.
The second consideration is "whether public access
plays a significant positive role" in the Rule 23(c) preliminary
hearing. Id. at 8. According to the Supreme Court, criminal
___
trials pass this test. Id. at 11-12. Like the California
___
preliminary hearing at issue in Press-Enterprise II, the Rule
___________________
23(c) preliminary hearing is sufficiently like a trial to pass
the test as well.
The hearings are held before a detached
neutral magistrate; both prosecutor and
defense counsel are present; evidence may
be presented by both sides, including
exculpatory evidence by the accused;
witnesses are heard and can be cross-
-27-
examined; and based on the evidence, the
magistrate will either hold the accused
over for trial or exonerate and set him
or her free. It is clear that the
magistrate is performing an adjudicative
function in the preliminary hearing and,
like California, this hearing may be the
only formal judicial proceeding, both in
the cases where the accused pleads guilty
and in those cases where no probable
cause is found.
Rivera-Puig, 785 F. Supp. at 289. Appellants have not challenged
___________
these conclusions, and we find that they are uncontrovertible.
Thus, under the experience and logic tests, the Rule 23(c)
preliminary hearings trigger First Amendment protection.
Moreover, Press Enterprise II decides this exact case
___________________
because the Rule 23(c) preliminary hearings are almost identical
to the California preliminary hearing that was at issue in that
case. The following comparison between the California and Puerto
Rico proceedings demonstrates that similarity:
(1) Both proceedings are held before a
neutral, detached magistrate, who
performs an adjudicative function as
judge, not as investigator or as
interested party. See People v. Opio-
___ ______ _____
Opio, 104 P.R. Dec. 65 (Off. Trans. at
____
65) (1975); Young v. Superior Court of
_____ __________________
San Joaquin County, 253 Cal.App.2d 848
____________________
(1967).
(2) The judge must rule on issues of law
as applied to the facts of each case.
See People v. Opio-Opio, 104 P.R. Dec. 65
___ ______ _________
(Off. Trans. at 65) (1975); Young v.
_____
Superior Court of San Joaquin County, 253
____________________________________
Cal.App.2d 848 (1967).
(3) Both hearings result in a ruling of
probable cause to hold over for trial, or
in the dismissal of charges against the
accused. People v. Rodr guez-Aponte, 116
______ ________________
P.R. Dec. 653 (Off. Trans. at 850)
-28-
(1986); People v. Uhlemann, 511 P.2d 609,
______ ________
610 (Cal. 1973).
(4) Ultimate guilt or innocence of the
accused beyond reasonable doubt is not
decided at this stage; the hearing offers
the prosecutor the opportunity to show
that there exists probable cause to
believe that an offense has been
committed and that the accused committed
it. People v. Figueroa-Castro, 102 P.R.
______ _______________
Dec. 279 (Off. Trans. at 352) (1974);
Cal. Penal Code. 866.
(5) Due to dismissal of charges, and the
plea bargaining generated after a finding
of probable cause, often the hearing is
the only opportunity for the public or
the press to observe the functioning of
the criminal process and the government
officials involved. People v. Cruz-
______ _____
Justiniano, 116 P.R. Dec. 28 (Off. Trans.
__________
at 35) (1984); San Jose Mercury-News v.
______________________
Municipal Court, 638 P.2d 655, 659 (Cal.
_______________
1982).
(6) The accused may appear before the
judge assisted by counsel, who has the
right to cross-examine the state's
witnesses, present evidence, and
otherwise defend his client within
formalities similar to trial. El Vocero
_________
de Puerto Rico, 92 J.T.S. 108 (1992).
______________
(7) The accused may present exculpatory
evidence, as well as certain defenses.
People v. V lez-Pumarejo, 113 P.R. Dec.
______ ______________
349 (Off. Trans. at 455) (1982); Jennings
________
v. Superior Court of Contra Costa County,
_____________________________________
428 P.2d 304, 312 (Cal. 1967).
(8) Both judicial proceedings provide due
process to the accused in order to
minimize the possibility that an
individual will be submitted arbitrarily
to the rigors of trial. See People v.
___ ______
L pez-Camacho, 98 P.R. Dec. 687, 689
_____________
(1970); Jones v. Superior Court of San
_____ ______________________
Bernardino, 483 P.2d 1241 (1971).
__________
(9) The People must provide to the
accused the sworn statements of witnesses
-29-
against him. In Puerto Rico, the
documents are shown at the hearing; in
California, the judge reads the
statements to the accused. Rule 23(c);
Cal. Penal Code. 864.
(10) The prosecutor does not have to
submit all the evidence he has at this
stage; the People can rest when he feels
that sufficient evidence has been
presented. See V lez-Pumarejo, 113 P.R.
___ ______________
Dec. 349; McDaniel v. Superior Court of
________ _________________
San Diego County, 55 Cal.App.3d 803
__________________
(1976).
(11) Evidence rules are followed
substantially in both jurisdictions.
Rule 23; People v. Esteves-Rosado, 110
______ ______________
P.R. Dec. 334 (Off. Trans. at 424 (1980);
People v. Schuber, 163 P.2d 498, 499
______ _______
(Cal. 1945); Cal. Penal Code. 872.5.
(12) In both jurisdictions, the hearing
must be held within "speedy trial" time
limitations. Opio-Opio, 104 P.R. Dec.
_________
65; P.R. Laws Ann. tit. 34 App II. R.
64(n)(4) and (5); 825 Cal. Penal Code.
(13) If the accused desires to discover
evidence not used in the hearing against
him, he may use other discovery
mechanisms which are available after the
hearing is held. See Rodr guez-Aponte,
___ ________________
116 P.R. Dec. 653; People v. Superior
______ ________
Court of Shasta County, 264 Cal.App.2d
________________________
694 (1968).
(14) The prosecutor can file a second
time if he does not prevail. P.R. Laws.
Ann. tit. 34 App II R. 24; See also
___ ____
People v. F lix-Avil s, 91 J.T.S. 50
______ ____________
(1991); People v. Uhlemann, 511 P.2d 609
______ ________
(1973); Cal. Penal Code. 871.
(15) Neither proceeding is similar to a
grand jury investigation. Rodr guez-
__________
Aponte, 116 P.R. Dec. 653; Press-
______ ______
Enterprise II, 478 U.S. 1.
_____________
(16) Both are statutory in nature.
Rule 23 established the proceeding in
1964; the original California statute was
-30-
adopted in 1851.
There is no substantial difference between the Puerto
Rico and California preliminary hearings with respect to basic
scope or purpose, importance of the proceeding within the
judicial setting, or legal context within the criminal process.
Distinguishing these two proceedings is an attempt to distinguish
the "indistinguishable." Chard n v. Fern ndez, 454 U.S. 6, 8
_______ _________
(1981).
Finally, the hearings to which Rivera-Puig sought
access were highly charged with public interest. Thus, the
"'community therapeutic value' of openness," Press-Enterprise II,
___________________
478 U.S. at 13 (quoting Richmond Newspapers, Inc. v. Virginia,
_________________________ ________
U.S. 555, 570 (1980)), helps to "'safeguard against the corrupt
or overzealous prosecutor and against the compliant, biased or
eccentric judge,'" id. at 12-13 (quoting Duncan v. Louisiana, 391
___ ______ _________
U.S. 145, 156 (1968)), thus giving the "'appearance of fairness
so essential to public confidence in the system.'" Id. at 13
___
(quoting Press-Enterprise I, 464 U.S. at 508). Thus, public
__________________
access to preliminary hearings as they are conducted in Puerto
Rico will play a particularly significant role in the actual
functioning of the process.
VI. CONCLUSION
VI. CONCLUSION
__________
We conclude that the qualified First Amendment right of
access to criminal proceedings applies to preliminary hearings in
Puerto Rico as they are conducted under Rule 23(c). We thus
affirm the judgment of the district court declaring
______
-31-
unconstitutional the provisions of that rule.
We remand this case to the district court to take such
actions as are necessary to achieve compliance with this judgment
"with all deliberate speed." Cf. Brown v. Board of Education,
___ _____ __________________
349 U.S. 294, 301 (1955). If required by the circumstances, the
district court shall issue injunctive relief. See Supreme Court
___ _____________
of Virginia v. Consumers Union of United States, Inc., 446 U.S.
___________ _______________________________________
719, 734-37 (1980).
The judgment of the district court is affirmed and the
________
case is remanded for action consistent with this opinion. Costs
________
are granted to appellee.
Affirmed and remanded.
_____________________
-32-
Document Info
Docket Number： 92-1239
Filed Date： 12/23/1992
Precedential Status： Precedential
Modified Date： 9/21/2015