176 F. Supp.2d 135 (2001) | Cited 0 times | D. Puerto Rico | November 29, 2001




This is an action for a declaratory judgment, injunctive relief, anddamages, in which Plaintiffs seek redress for the purported violation byDefendants of their constitutional rights to freedom of speech andassociation, to the equal protection of the laws, and to due process oflaw, as guaranteed by the First, Fifth, and Fourteenth Amendments to theUnited States Constitution. U.S. CONST. amends. I, V1 XIV. The complaintis brought under the provisions of 42 U.S.C. § 1983 (1988 & Supp. I2000).1 Jurisdiction is invoked under 28 U.S.C. § 1331 and 1343(1993)

Plaintiffs challenge the constitutionality of the Independent Citizens'Commission to Evaluate Government Transactions, popularly known as theBlue Ribbon Commission, created by Defendant Governor Sila M. Calder6n,of the Commonwealth of Puerto Rico, through Executive Order No. 2001-06.

Prior to the November 2000 general election, Sila M. Calder6n, asgubernatorial candidate for the Popular Democratic Party, publiclyaccused the administration of the New Progressive Party in power from1992 to 2000 with wide-ranging public corruption.2 The PopularDemocraticParty supports maintenance of the current political status ofPuerto Rico in relation to the United States. See 48 U.S.C. § 731-914(1982 & Supp. I 2001). The New Progressive Party advocates for PuertoRico to become a state. As part of the political platform of the PopularDemocratic Party, then-candidate Calderon promised to create a BlueRibbon Commission to investigate corruption committed by public officialsunder the New Progressive arty administration.

Plaintiffs Jorge E. Aponte and Daniel Pagán were high-rankingofficials in the targeted New Progressive Party administration. plaintiffAponte, a certified public accountant ("CPA"), was the Director of theOffice of Management and Budget of the Commonwealth of Puerto Rico duringthe years 1993 to 2000. Plaintiff Pagán, an engineer, was theoutgoing Secretary of the Puerto Rico Department of Natural andEnvironmental Resources (known by its Spanish acronym, "DRNA"). Bothofficials responded directly to the New Progressive Party Governor, Dr.Pedro Rossell, and they held their public positions until December 31,2000.

Defendants are Governor Sila M. Calder6n and the members of the BlueRibbon Commission. The members of the Blue Ribbon Commission allsympathize with the present Popular Democratic Party administration andits quest to investigate the preceding administration. At the November6-8, 2001 hearing held before this court, none admitted their specificpolitical party affihation, and all appear to be supporters of politicalideologies other than that of the New Progressive Party or so-calledindependent voters.


The Creation of the Blue Ribbon Connnission

The moving force behind the formation of the Blue Ribbon commission isGovernor Sila M. Calder6n's political promise to investigate publiccorruption by officers of the outgoing New progressive Partyadministration. Prior to the promulgation of Executive Order 2001-06.Defendant Calder6n requested the persons she had selected to be membersof the Commission to conduct research regarding the constitutionality ofthe body she intended to create. With the exception of one Defendant, whois a CPA, all of the past and current members of the Commission hold lawdegrees. Three Defendants are former judges. The Commissioners performedextensive research on the constitutionality of the Commission and itsprecise purposes prior to Defendant Calder6n's declaration of ExecutiveOrder 200l-06.3

The enabling executive order cites unprecedented corruption in publicmanagement, which, according to its terms, requires total eradication toreestablish the trust of the citizens of Puerto Rico ingovernmentinstitutions. The executive order seeks the cooperation of all publicemployees and the entire citizenry in the fight against public corruptionand conceives the independent commission composed of private citizens tobe representative of society. The commission is given power to:

FIRST: . . . evaluat Fe] significant government transactions, both of the past and present administrations, which in the judgment of the ommission itself, warrant evaluation.

ECOND: . . . (a) evaluate significant government transactions conducted by agencies of he Executive Branch of the government of the Commonwealth of Puerto Rico, both during the past and present administrations, which in the judgment of the Commission itself warrant evaluation. . . . Those transactions shall be considered significant which, in the Commission's judgment, whether because of the amount involved therein or because of other characteristics, have the potential of substantially impacting on areas such as the government structure, the public treasury, the country's economy and infrastructure, or the citizenry's trust in government institutions.

(b) . . . request from any natural or artificial person, whether or not a public functionary or employee, every sort of information regarding any government transaction which is under evaluation by the Commission, when in the judgment of the Commission itself, that information is pertinent to the evaluation process.

(c) . . . require the assistance of functionaries belonging to the Executive Branch in order to obtain, through the mechanisms provided by law, the appearance of any person or the delivery of any document or object, whensoever this shall be necessary and warranted.

THIRD: . . . issue to the Governor such reports as the Commission itself deems appropriate, with the partial or final results of the evaluations which the Commission has carried out or is carrying out. Said reports shall include such findings as have resulted from those evaluations, and may also include recommendations, both short- and long-term, that such actions as the Commission deems advisable be taken, including, but not limited to, recommendations that new statutory or regulatory rules be adopted to govern such transactions or that existing ones be modified, or that administrative, civil or criminal procedure be undertaken against certain persons. Such reports shall be disclosed solely by the Governor, except when in her judgment this may interfere with the successful carrying out of such actions as may be necessary in light of the contents of the report in particular.

FOURTH: The Governor's Office shall provide the Commission with an office where it may perform its functions. The Commission's administrative operations shall be carried out through the Department of State. The Department of State, the Department of Justice, and the other government agencies under the authority of the Governor's Office, are authorized and ordered to provide the Commission with such support as is necessary to enable the Commission to successfully carry out its mission, including, but not limited to, technical support, support, of personnel equipment [sic], and the hiring by the agency of such additional staff as the Commission may need. Requests for support from the Commission shall be channeled through the Chief of Staff.

SIXTH: . . . make its decisions by a majority of the total number of its members. . . . The work of the Commission shall be carried out in strict confidentiality. The information to which the members of the Commission have access as a result of their functions on the Commission shall be deemed strictly privileged, and may not be revealed for use by any of them for any purpose other than the work of the Commission. subject to the provisions of this Executive Order, the Commission may adopt such other rules as it deems appropriate to govern its own internal functioning.

SEVENTH: The chairperson of the Commission shall organize and direct the work of the commission, and shall be its only spokesperson. He or she may carry out any other activity which is entrusted to him or her by the Governor or by the Committee [sic] which is necessary to better fulfill this Executive Order.

Docket Document No. 7, Exh. 1 (emphasis added).

The Commission is composed of five members appointed by the Governor.David Noriega-Rodriguez, an attorney-at-law, former legislator, andadvocate for the Puerto Rico independence movement, acts as chairperson.Ileana Col6n-Carlo, a CPA, an attorney-at-law, and former Comptroller ofPuerto Rico, along with Carmen Rita Vélez-Borras, an attorney,former Secretary of Justice for the Commonwealth, and former SuperiorCourt Judge, are members of the Commission. Both claim to be politicallyindependent. Ms. Colón-Carlo, however, was appointed Comptrollerby Governor Rafael Hernandez Colon and actively participated in GovernorCalderón's campaign. CPA Pedro Galarza, a former president of thePuerto Rico Telephone Company under a previous Popular Democratic Partyadministration, was a member who recently resigned from the Commissionfor personal reasons. His position has not been filled. Attorney PedroLopez-Oliver, a retired Superior Court Judge, formed part of theCommission until late June 2001. He resigned from the Commission, and hasbeen substituted by former Superior Court Judge Angel Hermida, who alsoclaims to be an independent voter. The members of the Commission serve atthe pleasure of the Governor and can be removed by DefendantCalderón at any time. The Commissioners receive compensation fortheir efforts through professional services contracts with the Governor'sOffice.

The Commission is empowered to act sua sponte, but nothing in ExecutiveOrder No. 2001-06 impedes the Commission from acting on a referralbasis, whether from private or public sources.

Upon the Commission's decision to investigate a particular governmentaltransaction, its members proceed by private, confidential, and strictlyprivileged hearings to ascertain the facts pertaining to allegedviolations of governmental policy, irrespective of whether theconsequences for the persons under investigation are civil or criminal innature. To carry out this function, the Commission has the power to makeappropriate rules and regulations, to employ attorneys, investigators, andother staff members, to compel the attendance of witnesses with theassistance of the agencies of the executive branch of government, toexamine them under oath, and to require the production of books,records, and other evidence. See Docket Document No. 7. Exh. 1. Since theentire machinery of the executive branch is at its disposal, theCommission can technically enforce its orders seeking attendance ofwitnesses or production of books, records, and other evidence by petitionto the state courts for contempt proceedings. Id. Although the Commissionhas the power to request the aid of other executive branchagencies tocompel the testimony of a particular witness or the disclosure ofdocumentary evidence, the Commission claims that it has never done sobecause the Commissioners decided informally that they would not availthemselves of this power bestowed upon them. We note that the internaldetermination by the Commissioners that they would not compel a witnessto testify through service of a subpoena had not been previously divulgedto the public, and we have seen no contemporaneous amendment to theexecutive order or to any of the Commission's regulations to thateffect.

On paper, the scope of the Commission's investigative authority is notexplicitly limited by the enabling executive order to violations ofcriminal laws. However, the Commission's involvement in probing criminalviolations is patently clear from the executive order and is reinforcedby the availability through that order of the executive branch'sinvestigatory resources, including the Department of Justice of PuertoRico, to assist the Commission in its activities.

Since its creation, the Commission has rendered reports in threedistinct transactions, two of which are the object of this suit. Thetransactions are, first, the lease and purchase of a building located atBarbosa Avenue 306 and an adjacent parking lot on Italia Street, HatoRey, Puerto Rico. The second pertains to the relationship between theDepartment of Natural and Environmental Resources and the Solid WasteAuthority and a corporate entity known as the Puerto Rico InfrastructureManagement Group, Inc. ("PRIME"). In both cases, the Commission hassubmitted reports to the Governor. The findings have been private innature, following the tenor of Executive Order No. 2001-06. However, thereports have been the object of news conferences presided over byGovernor Calderón and some members of the Blue Ribbon Commission,and copies of the reports have been made available to the press forpublication. In both instances at issue here, these press conferences andthe publicized reports find that there is probable cause to believe thatviolations of Puerto Rico criminal law have occurred. The findings of theCommission in these two cases are a matter of public record, not becausethe enabling executive order provides such a mechanism, but because thefindings of the Commission have been made available to the general publicin the manner outhned above.

The Commission and the Governor have also reported the findings to thePuerto Rico Department of Justice and have referred the matters to themfor further proceedings. In certain instances, the Commission obtainedinformation relating to criminal activity and immediately forwarded suchevidence to the Governor. The Governor then referred the information tothe Department of Justice for further action, even before the issuance ofthe Commission's report to the Governor and the publication of suchreport through press conferences.

The Blue Ribbon Commission approved a set of operational by-laws duringits regular meetings held on February 20 and March 13, 2001. During thehearing held by this court on November 6-8, 2001, we heard testimony thata second set of by-laws that had been deemed strictly confidential hadalso been approved on February 27 and March 27, 2001. Surprisingly, theseregulations have not been considered for official publication inaccordance with Puerto Rico's Uniform Administrative Procedure Act. See 3L.P.R.A. § § 2101-2201 (1992 & Supp. I 1998). These norms forinvestigation and preparation of reports cover topics such as thesolicitation of assistance from the executive branch tocompel theattendance of witnesses and the production of documents, the issuance ofsummonses, directives as to the course of action to take when anattending witness refuses to testify or produce documents, the manner inwhich interviews are to be conducted and sworn statements are to betaken, the procedure for interviewing witnesses suspected of havingcommitted violations of criminal laws, and norms of confidentiality. Thesalient aspects of this confidential set of rules are quite revealing.Witnesses are forbidden from taking notes, and they cannot record theirtestimony. the Commission is directed not to provide copies of thestatements made by witnesses upon their request. The hearing officer orperson in charge of the investigation may seek the presence of aprosecuting attorney or other representative of the Department of Justiceduring any interview when such presence would advance the purposes of theinterview. There is no required method of recording the proceedings.Interviews or interrogations can be recorded or taken by a court reporteror simply reduced to writing by the examining officer as the witnesstestifies. See Addendum "A" to this Opinion and Order.

As indicated above, the Commission has the power to compel theattendance of witnesses. A witness is only given limited notice of thesubject matter of the investigation before being asked to appear andtestify. The witness may be allowed to bring an attorney to theinterview. The Commission, however, limits the participation of theattorney. Counsel may not question his client as to any relevant matter.The witness and his counsel have no right to examine other witnesses. TheCommission does not recognize the right to cross-examine witnesses. Theprocedure is such that the witness or his attorney may not even submit tothe Commission proposed questions to be asked of any other witnessappearing before it, inasmuch as the Commission has sole authority todecide what to ask and what must be produced.

The executive order that creates the Commission does not provide personwho might be incriminated or defamed as a result of the publication ofthe Commission's report an opportunity to further appear and be heard, orto call a reasonable number of witnesses on his behalf.

The Commission employs a staff to conduct investigations of pastgovernment transactions. The Commission's investigative staff includes:Attorney and former Special Independent Prosecutor BrendaLeón-Suárez, executive director of the Commission; attorneyJosé Sagardi a; attorney Gilberto ViU-Pérez; CPA Luis E.Gutiérrez; and attorney Nilsa Garcia. These investigators conducthearings, at which they receive testimony from witnesses.León-Suárez provides periodic progress reports regardingthe status of ongoing investigations to the Commissioners. TheCommissioners analyze the sworn statements, documentary evidence, andnotes on interviews of witnesses collected by the investigative staff,and León-Suárez, in conjunction with the otherinvestigators, prepares a draft of the factual findings that will serveas the basis for the Commission's report to the Governor. TheCommissioners then discuss the findings and draft the conclusions andrecommendations portions of the report.

In addition to the factual findings, conclusions, and recommendationscontained in the main body of the report, the Governor also receives thereport's exhibits, which consist of letters, contracts, electronic mailprint-outs1 notes of interviews, and sworn statements obtained by theCommission. After the report is submitted to the Governor, theCommissionersdiscuss their findings with her prior to the holding of apress conference.


The Blue Ribbon Commission's Investigation of plaintiffs

A. Plaintiff Jorge E. Aponte

On March 21, 2001, an armed agent of the Special IndependentProsecutor's Office, along with a Treasury Department agent, delivered asummons to the home of Plaintiff Aponte. Pls.' Exh. 18. The summonsrequested Plaintiff Aponte's appearance at a hearing scheduled for theafternoon of March 29, 2001. The document did not indicate the specificsubject matter of the hearing.

Plaintiff Aponte appeared at the Commission's office in the Red Palacebuilding annexed to La Fortaleza, the Governor's mansion, in San Juan, atthe designated time. He hand-delivered a letter toLeón-Suárez, requesting the following: A copy of ExecutiveOrder No. 2001-06; a copy of the Commission's bylaws; the specific topicto be discussed at the hearing; a copy of any opinion by the Puerto RicoSecretary of Justice explicating the legal basis for the Commission to beable to compel witnesses to appear before it, if any such opinionexisted; and information regarding the appointment of counsel to assisthim in these proceedings. León-Suárez informed PlaintiffAponte that she would forward his requests to the Commissioners, but shewas certain that he was not entitled to appointment of counsel inconnection with the Commission's investigation.

León-Suárez submitted a written response dated April 11,2001, to which she attached a copy of Executive Order 2001-06 and theCommission's bylaws, as requested by Plaintiff Aponte.4León-Suárez informed Plaintiff Aponte that the Commissionwas interested in his testimony in relation to the purchase of the 306Barbosa Avenue building and the contiguous lot at 307 Italia Street. Theletter summoned Plaintiff Aponte to appear at a hearing scheduled forApril 19, 2001.

Plaintiff Aponte attended the hearing in part becauseLeón-Suárez had assured him that his role in theproceedings was only to testify to the validity or authenticity of certaindocuments. Plaintiff Aponte was not aware that the Commission wasinvestigating him for misconduct. He believed that if he refused toappear, the Commission would conclude that he was hiding something.Plaintiff Aponte had reviewed the executive order and bylaws of theCommission which he had been provided, and he had determined that if hedid not appear before the Commission as required pursuant to saiddocuments, he would have been forced to appear under compulsion of legalprocess.

On April 19, 2001, Commission investigators León-Suárez,Sagardia, Gutierrez, and Vilá-Pérez interviewed PlaintiffAponte. Plaintiff Aponte informed the investigators that he believed theCommission was unconstitutional. He asked to record or take notes of thehearing, but León-Suárez refused those requests. When theinvestigators began to take notes of the proceedings, Plaintiff Aponteasked for a copy of their notes, but his request was denied.León-Suárez asked Plaintiff Aponte if he was willing tohave a stenographer record the hearing. Since Plaintiff Aponte could notverify whether the stenographer's record would beaccurate andconsidering that he did not have the assistance of an attorney, hedeclined.

During the hearing, Plaintiff Aponte was not advised of anyconstitutional rights that may have applied to him. The Commission'sinvestigators questioned him regarding the Barbosa 306 transaction. Theinvestigators' report of interview forms part of Court Exhibit 4-3. CourtExhibits 4 and 8 are photocopies made by the court of additional exhibitsordered to be produced. These are the reports of interview, swornstatements, and Part II of the PRIME report. They cover both transactionsunder scrutiny. See Minutes of In-Chambers proceedings, dated November29, 2001, Addendum "B" to this Opinion and Order.

B. Plaintiff Daniel Pa'gan

On March 22, 2001, an armed agent of the Puerto Rico Department ofJustice Special Investigations Bureau, which is known by its Spanishacronym "NIE", served Plaintiff Pagán at his home with a summonsto appear before the Blue Ribbon Commission on March 27, 2001. Pls.'Exh. 1.

In a letter dated March 26, 2001, Plaintiff Pagán notifiedLeón-Suárez that he had a previous appointment to appearbefore the Puerto Rico House of Representatives the following day. SeePls.' Exh. 2. Plaintiff Pagán informed León-Suárezthat although he believed the Commission did not have the authority toissue summonses compelling witnesses to appear before it, he was morethan willing to cooperate with the work of the Commission. PlaintiffPagán spoke with attorney Andrés Guillemard regarding thedrafting of the letter.

Plaintiff Pagán believed that, although the Commission did nothave the power to subpoena him, he was required to appear before it basedon his previous experience of working with the Department of Justice andthe NIE in investigations of other persons. In those priorinvestigations, formal actions had been initiated against certainindividuals. In light of the fact that an armed law enforcement agent hadappeared at his home to serve him with a summons from the Commission,Plaintiff Pagán perceived that the situation was very grave and hefelt he had a responsibility to make an appearance.

On the morning of April 25, 2001, Plaintiff Pagán appeared atthe Commission's offices in the Red Palace. plaintiff Pagánarrived alone because he believed he did not need the assistance of anattorney. León-Suárez, attorney Vilá-Pérez,and auditor Gutiérrez conducted the three-hour interview ofPlaintiff Pagán.

According to Defendant Noriega-Rodrfguez, the Commissioners did notsuspect Plaintiff Pagán of having engaged in criminal conduct atthe time of his appearance before the Commission. However, we note thatat the time Plaintiffs Pagán and Aponte were interviewed, the bulkof the investigation had been completed. Plaintiff Pagán was thelast witness to be called before the Commission. See Court Exh. Nos.4-2. 4-3. Plaintiff Pagán was not given any specific advice aboutany right that may have attached to him in the context of theCommission's investigation. He was not advised of any circumstance underwhich he would have had the right to have an attorney present at thehearing. He was not told that he had a right to remain silent. plaintiffPagán was not informed that he had a right to bring witnesses orpresent other evidence on his behalf. He requested that he be allowed totake notes of or record the investigative hearing.León-Suárez denied both of Plaintiff Pagán'srequests. Vilá-Pérez equated the interview with a grand juryproceeding, and he explained to Plaintiff Pagán that witnessestestifying before agrand jury were not allowed to take notes or recordthe proceedings. Plaintiff Pagán then realized that he was thesubject of the Commission's investigation. He requested thatLeón-Suárez provide him with a copy of the internalprocedural guidelines used by the Commission. León-Suárezagreed to answer his request at a later date, but then failed to do so.Plaintiff Pagán did not request the assistance of counsel.

At the hearing, Plaintiff Pagán offered information anddocumentary evidence to the Commission. He did not testify underoath and he did not sign any sworn statement, but the investigatorsreduced his interview to writing. See Retort of Interview, CourtExhibit 4-3. Plaintiff Pagán was not confronted with any witnessestestifying against him.

On May 9, 2001, Defendants Calderón, Noriega-Rodriiguez. andother Commissioners held a press conference to disclose the findings ofthe Commission's investigation regarding the lease and purchase of theBarbosa building. Prior to the press conference, DefendantCalderón had met with leaders of the Puerto Rico legislature, oneof whom had stated publicly that the Commission's report containedaccusations of a criminal nature.

The report was titled, "Irregularities in the Acquisition of theBuilding Located at 306 Barbosa and the Adjacent Lot at 307 ItaliaStreet." Pls.' Exh. 4. At the press conference, Defendant Calderónannounced that she was referring the matter to the Secretary of Justiceof the Commonwealth of Puerto Rico, as the Commissioners hadrecommended. In addition to the accusations of criminal misconductincluded in the report against both Pagán and Aponte, at the pressconference Defendant Noriega-Rodrfguez speculated that Plaintiff Apontemight have profited personally from the Barbosa transaction. At the timeof the press conference, Plaintiffs Pagán and Aponte had not beengiven an opportunity to respond to the Commission's conclusions. Infact, neither had received a copy of the report.

With regard to Plaintiffs, the report makes the following specificconclusions:

As a direct consequence of contracts approved in 1998 and 1999 by the CPA Jorge Aponte, then Director of the Office of Management and Budget (OGP), and by the engineer Daniel Pagán, then Secretary of the Department of Natural and [Environmental] Resources, in the process of acquiring for government purposes the building located at 306 Barbosa Avenue and the adjacent lot at 307 Italia Street, and between the lease and the purchase of those properties, public funds were paid out, amounting to $9, 300, 000, which sum is more than $7 million in excess of the fair market value of said properties. In the face of that situation, all possible legal avenues (administrative, civil, or criminal) which might allow the public treasury to recover the aforesaid excess, must be explored.

. . . The data compiled by the Commission in this case clearly revealed that both CPA Jorge Aponte, then Director of the OGP, and engineer Daniel Pag4n, then Secretary of the DRNA, at the very least were grossly negligent in assigning the function of negotiating a multi-million dollar transaction to certain subordinate functionaries who, in the Commission's judgment, lacked the necessary capability to handle a matter of such magnitude. Those data further reveal that both Messrs. Aponte and Pagán at the very least were repeatedly and grossly negligent in failing to adequately supervise the dealings that their aforesaid subordinates were making in the aforesaid transaction.

Pls.' Exh. 4. In their report, Defendant Commissioners also speculatethat the Barbosa 306 transaction may have been hampered by "improperinfluences," and there may have been a conspiracy to defraud the publictreasury.

On May 11, 2001, Plaintiff Pagán submitted a written request toLeón-Suárez for a copy of the Commission's report. Pls.'Exh. 5. Three days later, León-Suárez notified PlaintiffPagán that she was not authorized to provide him with a copy ofthe report, and that she had forwarded his letter to La Fortaleza. Pls.'Exh. 6. On May 15, 2001, Defendant Calderón's legal advisorinformed Plaintiff Pagán that he could obtain a copy of thedocument through La Fortaleza. Pls.' Exh. 7. Plaintiff Pagánpicked up a copy of the Commission's report, which was missing theexhibits of the evidence relied upon by the Commission and forwarded tothe Governor.5

In a letter dated July 30, 2001, León-Suárez requestedPlaintiff Pagán to appear for a second time before the Blue RibbonCommission on August 6, 2001, in relation to its investigation of theremodeling of the Barbosa 306 building and of the contract between PRIMEand the Solid Waste Authority, which is known by its Spanish acronym"ADS". Pls.' Exh. 3. The summons was delivered via certified mail withreturn receipt requested. plaintiff Pagán chose not to appear atthe scheduled hearing.

In late October 2001, the Commission delivered the first part ofa report on its investigation into the contract between the SolidWaste Authority and PRIME. On October 31, 2001, Defendants Calderónand the Commissioners held a news conference to expose the contentsof the report. The PRIME report included the following paragraph:

Then-secretary of the DRNA, Engineer Daniel Pagán Rosa, improperly intervened in the stage reconsideration of the awarding of a bid procedure to the ADS for a project for the recovery of clean material at the municipality Toa Baja in particular. And after the bid board of the ADS had adjudicated said bid and they had reaffirmed their decision to deny a motion for reconsideration, Engineer Pagán Rosa ordered the president of the bid board to cause the disappearance of the documents which evidenced this last decision of the board, and in its place the board should annul the previously adjudicated bid.

Pls.' Exh. 8. Defendant Calderón forwarded the report to theSecretary of Justice, and the Secretary of Justice then referred thematter to the Special Independent prosecutor. The Secretary of Justicehad been apprised of the Commission's investigation into the PRIME mattersince August, and the Commission had been working in close collaborationwith the Department of Justice.

On November 1, 2001, the Commission submitted the second part of itsreport on the PRIME matter to Defendant Calderón. TheCommissioners have given a presentation about the report to theGovernor, but as of November 8, 2001, she had not read the document. OnNovember 4, 2001, the Puerto Rico Department of Justice referred thematter to a Special Independent Prosecutor for further proceedings.Docket Document No. 39. See PartII of the PRIME Report, Court Exh. 8-1.On November 26, 2001, EL NUEVO DIA, a local newspaper, published theresults of Part II of the PRIME report. The court is not aware whetherplaintiffs received a copy.


Procedural History

On July 16, 2001, Plaintiffs filed the present complaint. DocketDocument No. 1. While the complaint is somewhat tenebrous, we can discernthat Plaintiffs are alleging violations of their First Amendment, equalprotection, and due process rights guaranteed by the United StatesConstitution. U.S. CONsT. amends. I, V, XIV. Plaintiffs also allegeviolations of Article II, Sections 1, 6, 7, and 8 of the Constitution ofthe Commonwealth of Puerto Rico, P.R. CONST. art. II, §§ 1, 6, 7, 8,and 31 L.P.R.A. § 5141 (1990). Plaintiffs aver that the Commission isinvalid because it violates the principle of separation of powersenshrined in the Puerto Rico Constitution. Plaintiffs claim that thiscourt has subject matter jurisdiction over their state-law claimspursuant to 28 U.S.C. § 1367 (1993)

Plaintiffs Aponte and Pagán each seek compensatory damages forviolations of their federal constitutional rights and for Defendants'alleged tort-law violations. Plaintiffs allege that they have sufferedgreat mental and emotional anguish due to the harm inflicted upon theirpersonal and professional reputation. Plaintiffs maintain that Defendants'actions have prevented them from obtaining employment in the public andprivate sectors. In addition, Plaintiffs claim to have experiencedtremendous fear and anxiety due to the possibility that frivolouscriminal charges will be brought against them. Furthermore, Plaintiffsdemand punitive damages.

Plaintiffs also seek a declaratory judgment stating that the Commissionviolates the United States Constitution and the Constitution and laws ofPuerto Rico. Plaintiffs also request injunctive relief barring Defendantsfrom violating Plaintiffs' constitutional rights and ordering DefendantCalderón to vacate Executive Order No. 2001-06 and to permanentlydissolve the Commission.

On August 13, 2001, Plaintiff Pagán filed a motion for apreliminary injunction. Docket Document No. 7. Plaintiff Pagánrequests that this court bar Defendants from further harassing him withrespect to their investigation on the remodeling of the Barbosa buildingand on the contract between PRIME and the Solid Waste Authority.Defendants oppose Plaintiff Pagán's motion for a preliminaryinjunction. Docket Document Nos. 12, 16, 22, 23.

On September 4, 2001, Defendants Noriega-ROdriguez,Colón-Carlo, Vélez-Borras, Galarza, López-Oliver,and Hermida ("Defendant Commissioners") filed a Rule 12(b)(6) motion todismiss on the following grounds: (1) Plaintiffs' procedural due processclaims fail because they have not identified a constitutionally protectedliberty or property interest; (2) even if Plaintiffs' procedural dueprocess rights were violated, such deprivations were "random andunauthorized," and Plaintiffs have failed to allege the unavailability ofan adequate post-deprivation state-law remedy; (3) Plaintiffs' claims ofdenial of their right to a fair trial, the presumption of innocence, andeffective assistance of counsel are not ripe; (4) defamation is not aconstitutional cause of action; Plaintiffs' conclusory allegations withregard to political discrimination are insufficient to state an equalprotection or First Amendment claim; (6) Defendant Commissioners areprotected by the doctrine of qualified immunity; and (7) this court shoulddeclineto exercise supplemental jurisdiction over Plaintiffs' state-lawclaims.6 Docket Document No. 13. Defendant Calderón joinsDefendant Commissioners' motion to dismiss. Docket Document No. 16.

On September 5, 2001, plaintiff Pagán filed a motion tosupplement his preliminary injunction motion. Docket Document No. 15.Plaintiff Pagán contends that this court should rely on Jenkinsv. McKeithen, 395 U.S. 411 (1969), to find that Plaintiffs have prevailedon the merits. Defendants filed a supplementary motion of law arguingthat Jenkins does not apply to the instant case. Docket Document Nos.23. 25.

On September 13, 2001, Plaintiffs filed a motion for partial summaryjudgment. Docket Document No. 21. Plaintiffs asseverate that they areentitled to judgment as a matter of law with regard to their FirstAmendment, equal protection, and due process claims. Plaintiffs' lengthybrief, which largely reiterates previous filings, does not present anynew arguments for this court to consider. Defendants oppose Plaintiffs'summary judgment motion. Docket Document Nos. 31, 32.

On September 17, 2001, Defendant Calderón filed a Rule 12(b)(6)motion to dismiss the complaint against her on the following grounds: (1)the allegations of the complaint are insufficient to state a claim ofdefamation; (2) injury to one's reputation is only actionable underSection 1983 if the harm to reputation is accompanied by the loss of acurrent governmental entitlement; (3) the superfluous nature of the BlueRibbon Commission is not a matter that this court should concern itselfwith; (4) Jenkins is not controlling; and (5) Defendant Calderónis entitled to absolute and/or qualified immunity. Docket Document No.25.

On September 28, 2001, Plaintiffs filed a consolidated opposition toDefendants' motions to dismiss. Docket Document No. 30.

On November 1, 2001, Plaintiff Pagán filed a motion for atemporary restraining order prohibiting Defendants from making furtherstatements regarding the PRIME report. Docket Document No. 36. The courtdenied the request without prejudice due to the proximity of a scheduledhearing.

On November 6-8, 2001, this court held an injunctive relief hearing.7



We assess the relevant arguments presented in the parties' variousdispositivemotions, along with Plaintiffs' requests for injunctive anddeclaratory relief.

A. Ripeness

We first consider whether this case is justiciable. The purpose of theripeness doctrine is "`to prevent the courts, through avoidance ofpremature adjudications from entangling themselves in abstractdisagreements.'" Stern v. United States Dist. Court for the Dist. ofMass., 214 F.3d 4, 10 (1st Cir. 2000) (internal citation omitted). The"linchpin of ripeness . . . is adverseness." Rhode Island v. NarragansettIndian Tribe, 19 F.3d 685, 692 (1st Cir. 1994).

We find that Plaintiffs have a genuine threat of prosecution for thevarious criminal offenses outhned infra. The close collaboration betweenthe Blue Ribbon Commission and law enforcement agencies, along with thepublic accusations of criminal misconduct against Plaintiffs, evidence thelikelihood that Plaintiffs may be prosecuted for violations of PuertoRico's Penal Code. Consequently, we find that the present case is ripefor adjudication. See R.I. Ass'n of Realtors, Inc. v. Whitehouse,199 F.3d 26, 33 (1st Cir. 1999) ("`Our conclusion that a reasonablethreat of prosecution exists effectively dispenses with any ripenessproblem.'") (internal citation omitted)

B. Younger Abstention

In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held thatfederal courts are obligated to abstain from adjudicating federal claimsif such adjudication would involve needless interference into state courtcriminal proceedings. Id. at 44. Pursuant to Younger, a federal courtshould abstain from deciding the merits of a case if

[t]here is (1) an ongoing state judicial proceeding, instituted prior to the federal proceeding (or, at least, instituted prior to any substantial progress in the federal proceeding), that (2) implicates an important state interest, and (3) provides an adequate opportunity for the plaintiff to raise the claims advanced in his federal lawsuit.

Brooks v. N.H. Supreme Court, 80 F.3d 633, 638 (1st Cir. 1996). Incertain circumstances, a federal court may be obligated to abstainfrom adjudicating a federal case to prevent interference with ongoingstate administrative proceedings. Ohio Civil Rights Comm'n v. DaytonChristian Sch., Inc., 477 U.S. 619, 627 (1986).

We find that the principles of Younger do not apply to the presentcase. First, there are no ongoing state criminal proceedings pendingagainst Plaintiffs. Although the transactions investigated by the BlueRibbon Commission have been referred to the Department of Justice, therehave been no formal criminal charges filed against them. Second, thereappears to be no ongoing state administrative proceeding involvingPlaintiffs. The Commission's investigation of the Barbosa 306 transactionconcluded in the spring of this year, and the report was released to thepublic on May 9, 2001. The Commission's investigation of the PRIME matterhas also terminated, and the Commission forwarded the second and finalpart of its report to Defendant Calderón on November 1, 2001. Sincethere appears to be no ongoing state criminal or administrativeproceedings involving Plaintiffs, we reject Defendants' contention thatthis court should abstain from deciding this case pursuant to Younger.

C. Absolute Innunity

Public officials acting in a legislative capacity enjoy absoluteimmunity fromliability under Section 1983. Romero-Barcelo v.Hernandez-Agosto, 75 F.3d 23, 28 (1st Cir. 1996). The question of whetheran official can properly invoke absolute immunity hinges on the functionperformed by that individual, not on his or her official title.Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1, 8 (1st Cir. 2000). Anofficial is protected by absolute immunity in the performance oflegislative acts only; absolute immunity does not shield an official fromliability for administrative or executive acts. Id. at 7-8. The test todetermine whether an act is legislative or administrative istwo-pronged.

First, if the facts underlying the decision are "generalizations concerning a policy or state of affairs," the decision is legislative. If the decision stems from specific facts relating to particular individuals or situations, the act is administrative. Second, the court must consider "the particularity of the impact of the state of action." "If the action involves establishment of a general policy, it is legislative;" if it "single[s] out specifiable individuals and affect[s] them differently from others," it is administrative.

Id. at 9.

Here, it appears that Defendant Calderón was inspired to cteatethe Blue Ribbon Commission out of concern about purported corruptionwithin a particular New Progressive Party administration. DefendantCalderón's promulgation of Executive Order 2001-06, receipt ofinvestigative reports from the Blue Ribbon Commission, referral ofmatters to the Department of Justice, and staging of news conferencesdisclosing the findings of the Commission apparently stemmed fromspecific facts relating to the Rosselló administration. Even ifthis were not the case and Defendant Calderón's actions weremotivated by a general, abstract policy against corruption, we note thatDefendants' implementation of the executive order has unquestionablytargeted particular individuals. Cf. Acevedo-Garcia, 204 F.3d at 8-9. Theinvestigations carried out by the Blue Ribbon Commission and thesubsequent public accusations of misconduct unquestionably single outspecific individuals, including Plaintiffs, and have profoundly anduniquely impacted their lives. We conclude that the creation andoperation of the Blue Ribbon Commission is an administrative, not alegislative act, and that therefore Defendant Calderón is notentitled to absolute immunity.

D. Injunctive Relief

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, weconsolidated the injunctive relief hearing with the trial on themerits, and we determine whether Plaintiffs are entitled to permanentinjunctive relief. FED. R. Civ. P. 65(a)(2)

To issue a permanent injunction, a district court must make thefollowing findings: "(1) plaintiffs prevail on the merits; (2) plaintiffswould suffer irreparable injury in the absence of injunctive relief; (3)the harm to plaintiffs would outweigh the harm the defendant would sufferfrom the imposition of an injunction; and (4) the public interest wouldnot be adversely affected by an injunction." A.W. Chesterton Co. v.Chesterton, 128 F.3d 1, 5 (1st Cir. 1997)

1. Success on the Merits

To prevail on a Section 1983 claim, a plaintiff must make twoshowings: "`(i) that the conduct complained of has been committed undercolor of state law,8 and(ii) that this conduct worked a denial ofrights secured by the Constitution or laws of the United States.'"Collins v. Nuzzo, 244 F.3d 246, 250 (1st Cir. 2001)

a. First Amendment

Plaintiffs argue that their constitutional rights to freedom of speechand of association have been violated by the actions of the Commission.According to Plaintiffs, Defendants invidiously discriminated againstPlaintiffs due to their political affihation, in violation of the FirstAmendment. Plaintiff 5 claim that the Blue Ribbon Commission is aninstrument used by the Popular Democratic Party ("PDP") to persecutepersons who advocate statehood for Puerto Rico. Plaintiffs allege that thefollowing facts evidence Defendants' discriminatory ammus againstPlaintiffs on the basis of their affihation with the New ProgressiveParty ("NPP"): (1) Defendant Calderón has made numerous publicstatements about the allegedly widespread corruption within theRosselló administration; (2) none of the members of the Commissionare affihated with the New Progressive Party; (3) several Commissionershave had ties with PDP administrations and Defendant Noriega-Rodriguezran for governor on the Puerto Rican Independence Party ticket; (4) theCommission is purportedly focused only on questionable transactions ofthe Rosselló administration; (5) other government institutions,such as the Office of the Comptroller, the Department of Justice, and theOffice of the Special Independent Prosecutor fulfill similar functions asthe Commission, and, therefore, the Commission is superfluous; (6)Defendant Calderón's process of selecting Commissioners issubjective and arbitrary; (7) Defendant Commissioners serve at thepleasure of Defendant Calderón and therefore lack independence fromher; and (8) Executive Order 2001-06 and the Commission's internalregulations lack guidelines as to how the Commission should selecttransactions to investigate and how the Commission should conduct itsinvestigations so as to protect the constitutional rights of personsunder scrutiny.

The First Amendment reads: "Congress shall make no law respecting anestablishment of religion, or prohibiting the free exercise thereof; orabridging the freedom of speech, or of the press; or the right of thepeople peaceably to assemble, and to petition the Government for a redressof grievances." U.S. CONST. amend. I. The primary purpose of the FirstAmendment is to protect political expression. 4 RONALD D. ROTUNDA & JOHNE. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE §20.50 (3d ed. 1999)

The First Circuit has not developed a general standard for courts toevaluate all types of alleged First Amendment violations in Section 1983cases. See Romero Barcelo v. Hernandez Agosto, 876 F. Supp. 1332, 1347(D.P.R. 1995), aff'd, 75 F.3d 23 (1st Cir. 1996) The courts have heldthat the First Amendment prohibits certain types of government actionwhich limit individuals' freedom to speak and to participate in politicalactivities. For example, the First Circuit has ruled thatnon-policymaking public employees may not be terminated because of theirpolitical views. See, e.g., Padilla-Garcia v. Rodriguez, 212 F.3d 69, 74(1st Cir. 2000). Public employees may also sustain a Section 1983 FirstAmendment claim on the basis of an adverse employment action takenagainst them in relation to speech regarding public matters. Tang v.State of R.I., Dep't of Elderly Affairs, 163 F.3d 7, 11-12 (1st Cir.1998). The First Circuit has not, however, formulated a general standardto be applied in First Amendment cases that do not arise in particularcontexts such as these.

The crux of Plaintiffs' First Amendment claim is that Plaintiffs areassociated with the New Progressive Party, while Defendants are not.Plaintiffs conclude that the actions taken by Defendants constitute aviolation of Plaintiffs' First Amendment right to associate with thepolitical party of their choosing. We find that Plaintiffs have notprevailed on the merits of their First Amendment claim. The bare fact thatDefendants are not openly identified with Plaintiffs' party of choice,the New Progressive Party, clearly does not rise to the level of a FirstAmendment violation. See Correa-Martinez v. Arrillaga-Belendez,903 F.2d 49, 58 (1st Cir. 1990) ("Merely juxtaposing a protectedcharacteristic-someone else's politics-with the fact that plaintiff wastreated unfairly is not enough to state a constitutional claim."). Ifthis court were to conclude otherwise, every disgruntled individual whohad been subjected to any kind of undesired treatment by a state actoraffihated with a rival political group would be able to seek relief infederal court for infringements upon his or her First Amendment rights.Despite Plaintiffs' protestations to the contrary, the Constitution doesnot afford such sweeping protections.

b. Equal Protection

In addition to their First Amendment and due process claims, Plaintiffshave alleged a violation of the equal protection clause of the FourteenthAmendment. Since the class allegedly suffering discrimination consists ofpersons belonging to a particular political party, we find that theso-called equal protection claim is nothing more than a restatement ofPlaintiffs' First Amendment claim. Viewing it as such, and concludingthat Plaintiffs cannot, by pleading equal protection, outdistance theconstitutional protection afforded by the First Amendment, we dismissPlaintiffs' equal protection claims. See 3 ROTUNDA & NOWAK, § 18.40("It is generally unnecessary to analyze laws which burden the exerciseof First Amendment rights by a class of persons under the equalprotection guarantee, because the substantive guarantees of the Amendmentserve as the strongest protection against the limitation of theserights.")

c. Procedural Due Process

Under the Fourteenth Amendment to the Constitution, no State shall"deprive any person of life, liberty, or property, without due process oflaw." U.S. CONST. amend. IV, § 1. The essential inquiry under the dueprocess clause is whether Plaintiffs were treated fairly. 3 ROTUNDA &NOWAK, § 17.8. The Constitution demands that the state cannot deprivean individual of a significant interest in liberty or property withoutfirst warning the individual and providing "an opportunity to be heard`at a meaningful time and in a meaningful manner.'" Amsden v. Moran,904 F.2d 748, 753 (1st Cir. 1990) (quoting Armstrong v. Manzo,380 U.S. 545, 552 (1965)).

To establish a procedural due process claim, aplaintiff must show that (1) he has a constitutionally protected interestin life, liberty, or property, and (2) the state deprived him of thatinterest without due process of law. See Romero-Barcelo, 75 F.3d at 32;PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 30 (1st Cir. 1991)

Plaintiffsargue that they have a constitutionally protected property and libertyinterest in their good name. Plaintiffs Pagán and Aponte bothtestified that Defendants' conduct has caused serious injury to theirprofessional reputations. Plaintiffs claim that their careers havesuffered greatly as a result of the Commission's issuance of reportsaccusing them of criminal activity. Plaintiffs also maintain that theywere denied their constitutional right to a fair trial in whichdefendants are to be presumed innocent and to be assisted by counsel.

An individual's interest in his reputation is constitutionallyprotected only if the interest is

[a]ccompanied 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 a result of a conscious government policy and is serious enough to interfere with other liberties of the sort suggested in Meyer [v. Nebraska, 262 U.S. 390 (1923)].

Beitzell v. Jeffrey, 643 F.2d 870, 878 (1st Cir. 1981) The Constitutionof the Commonwealth of Puerto Rico protects an individual from attacks onhis reputation. P.R. Const. art. II, § 8 ("Every person has the rightto the protection of law against abusive attacks on his honor, reputationand private or family life."). The First Circuit has found that Section 8may create a constitutionally protected liberty interest in one' sreputation. Romero-Barcelo, 75 F.3d at 33. An individual does not enjoy aconstitutionally protected interest in his own reputation unless the harmto his reputation is "unusually serious." Beitzell, 643 F.2d at 878.

This court need not decide whether Plaintiffs' interest in theirreputation rises to a constitutionally protected level in the case atbar, because we find that Plaintiffs have a fundamental, constitutionallyprotected liberty interest in being free from investigation andprosecution for criminal offenses in a manner that tramples upon theprocedural protections afforded by the Fourteenth Amendment. See, e.g.,Jenkins v. McKeithen, 395 U.S. 411 (1969) (explicated infra); Gabrilowitzv. Newman, 582 F.2d 100, 107 (1st Cir. 1978) (student had a due processright to counsel at' a college disciplinary hearing due to the pendingcriminal case against him); Watson v. County of Riverside,976 F. Supp. 951, 956 (C.D. Ca. 1997) (due in part to the possibility ofcriminal prosecutions police officer had a due process interest in beingrepresented by counsel in relation to the drafting of a report about anincident of police brutality). The due process clause requires theimposition of numerous procedural safeguards at every stage of thecriminal investigatory and adjudicatory process for the protection ofindividuals. See 1 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE §2.7(a)(2d ed. 1999). The liberty interest protected by the due processclause plainly includes liberty from unjust imprisonment. Meyer v.Nebraska, 262 U.S. 390, 399 (1923) (liberty "denotes not merely freedomfrom bodily restraint"). Although they have not yet been formallycharged, Plaintiffs have been accused of serious violations of the PuertoRico criminal code, and they have a protected interest in being free fromprosecution in a manner that does not uphold constitutional requisites ofdue process.

The May 1, 2001 Commission report included the following conclusion:

The data compiled by the Commission in this case clearly revealed that both CPA Jorge Aponte, then Director of the OGP, and engineer Daniel Pagán, then Secretary of the DRNA, at the very least were grossly negligent in assigning the function of negotiating a multi-milliondollar transaction to certain subordinate functionaries who, in the Commission's judgment, lacked the necessary capability to handle a matter of such magnitude. Those data further reveal that both Messrs. Aponte and Pagán at the very least were repeatedly and grossly negligent in failing to adequately supervise the dealings that their aforesaid subordinates were making in the aforesaid transaction.

Pls.' Exh. 4. At a bare minimum, the report clearly accuses Plaintiffsof violating Section 4366 of the Puerto Rico Penal Code:

Every public officer who wilfully neglects to perform the duties of his office or employment, or who violates any legal provision relative to his duties or those of his office or employment1 for which no special provision fixing the corresponding penalty is prescribed, shall be punishable by imprisonment not exceeding six months or a fine not exceeding five hundred dollars, or both, in the discretion of the court.

33 L.P.R.A. § 4366 (1983). In addition, Plaintiffs are at risk ofprosecution for committing crimes against public funds in violationof Section 4391.

Any public official or employee and any person in charge of receiving, keeping, transferring or reimbursing public funds who performs any of the following acts shall be punished with imprisonment for a fixed term of six (6) years:

(k) Neglects or fails to safekeep or disburse public funds as prescribed by law.

33 L.P.R.A. § 4391 (1983 & Supp. 1 1998)

The PRIME report released on October 31, 2001, contained the followingconclusion accusing Plaintiff Pagán of criminal conduct:

Then-secretary of the DRNA, Engineer Daniel Pagán Rosa, improperly intervened in the stage of reconsideration of the awarding of a bid procedure to the ADS for a project for the recovery of clean material at the municipality of Toa Baja in particular. And after the bid board of the ADS had adjudicated said bid and they had reaffirmed their decision to deny a motion for reconsideration, Engineer Pagán Rosa ordered the president of the bid board to cause the disappearance of the documents which evidenced this last decision of the board, and in its place the board should annul the previously adjudicated bid.

Pls.' Exh. 8. The Commission concluded that Plaintiff Pagán hadcommitted undue intervention in the performance of contracts, biddingprocedures or government operations in violation of Section 4353a ofthe Penal Code:

Every public official or employee who, without legal authority, intervenes unduly in the performance of a contract, bidding procedure or any other operation of the Government of the Commonwealth of Puerto Rico by willfully omitting or committing any act that constitutes an unequivocal violation of the laws, regulations and norms applicable to these transactions with the sole purpose of benefiting a particular person, shall be punished by imprisonment for a fixed term of three (3) years. In the event of aggravating circumstances, the established fixed term shall be increased up to a maximum of five (5) years; if there were extenuating circumstances, it shall be reduced to a minimum of two (2) years.

33 L.P.R.A. § 4353a (1983 & Supp. I 1998). In addition, PlaintiffPagán may beprosecuted for committing destruction or mutilation ofdocuments in violation of Section 4356 of the Penal Code:

Every public officer or employee in charge of the custody of any original public document who willfully takes, destroys, removes or conceals in whole or in part, or who permits another person to do so, shall be punishable by imprisonment for a fixed term of six (6) years. If there were aggravating circumstances, the fixed penalty established may be increased up to a maximum of ten (10) years; if there were extenuating circumstances it could be reduced to a minimum of four (4) years.

33 L.P.R.A. § 4356 (1983 & Supp. I 1998)

Given the likelihood that serious criminal charges will be broughtagainst Plaintiffs as a result of the Commission's investigations, it ispellucid that Plaintiffs have a constitutionally protected libertyinterest in ensuring that the state acts in accordance with due processstandards in the prosecution of Plaintiffs.

The requirements of procedural due process are flexible and depend onthe specific situation at issue. Amsden, 904 F.2d at 753. The UnitedStates Supreme Court enunciated the factors that must be balanced in aprocedural due process analysis in Mathews v. Eldridge, 424 U.S. 319(1976)

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally> the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Id. at 334-35. When the government deprives an individual of an interestin life, liberty, or property, the elements of due process which may berequired are:

(1) adequate notice of the charges or basis for government action; (2) a neutral decision-maker; (3) an opportunity to make an oral presentation to the decision-maker; (4) an a opportunity to present evidence or witnesses to the decision-maker; (5) a chance to confront and cross-examine witnesses or evidence to be used against the individual; (6) the right to have an attorney present the individual's case to the decision-maker; [and] (7) a decision based on the record with a statement of reasons for the decision.

3 ROTUNDA & NOWAK, § 17.8. Furthermore, in the context of criminalproceedings or other formal adjudicative processes, the following elementsmay be required: "(I) the right to compulsory process of witnesses; (2) aright to pre-trial discovery of evidence; (3) a public hearing; (4) atranscript of the proceedings; (5) a jury trial; [and] (6) a burden ofproof on the government greater than a preponderance of the evidencestandard."9 Id.

In Jenkins v. McKeithen, 395 U.S. 411 (1969), the United StatesSupreme Court examined the constitutionality of a Louisiana statutewhich created a Labor-ManagementCommission of Inquiry. The purposeof the commission was to investigate facts relating to violations ofcriminal laws in the area of labor-management relations. The SupremeCourt reversed the dismissal of the case by the lower court.

The Louisiana commission was created to supplement the effortsof law enforcement agencies in the investigation of violations ofcriminal laws. Upon referral by the governor, the commission couldhold a public hearing to determine the facts relating to allegedcriminal activity. The commission was empowered to adopt its ownrules and regulations, to employ investigative, legal, and otherstaff members, to require the attendance of witnesses, and to compelthe production of documentary evidence. The commission could enforceits orders through contempt proceedings in state courts.

In Jenkins, the commission made public findings as to whether probablecause existed that a crime had occurred. The Louisiana commission did nothave the authority to render adjudications that were binding on anypersons; it could only make conclusions as to whether particularindividuals had participated in criminal activity and offerrecommendations to the governor for further proceedings.

If the commission found probable cause, it was required to report itsconclusions to the relevant state or federal authorities. The commissionalso had authority to file charges. In addition, the commission could askthe governor to refer matters to the state attorney general forprosecution.

Witnesses called to testify before the Louisiana commission wereapprised of the general subject of investigation prior to the hearing.Witnesses had the right to the services of an attorney, although thecommission could impose limitations on counsel's participation in thehearing to prevent interference with the proceedings. The attorney couldquestion his own client, but the witness and his counsel had only alimited right to examine other witnesses. Witnesses could request thatparticular questions be asked of other witnesses, but the commission hadfinal authority to decide which questions to ask the individuals whoappeared before it.

Although the Louisiana commission generally presided over publichearings, it could meet in executive session if it appeared that awitness' testimony would "tend to degrade, defame or incriminate anyperson." In executive session, the commission was required to allow theindividual who might be presented in a negative light the opportunity totestify on his own behalf and to present witnesses in his defense.

The Jenkins Court noted that the commission did not function in anadjudicative capacity in the same manner as a court. 395 U.S. at 427.However, the Court found that the findings prepared by the commissionwere very similar to an official adjudication of criminal culpability bya court of law. Id.

The Court found that the procedural protections offered by theLouisiana commission did not meet the standards imposed on the statespursuant to the due process clause of the Fourteenth Amendment. Id. at428. ("[I]t is clear the procedures of the Commission do not meet theminimal requirements made obligatory on the States by the Due ProcessClause of the Fourteenth Amendment."). The Court stressed that the rightto confront and cross-examine witnesses is an essential component of dueprocess. Id. Since the commission made actual determinations thatparticular individuals were guilty of committing a crime, the Cburt foundthat the commission's restrictions on witnesses' right to confront andcross-examine witnesses was unconstitutional. Id. at 429. ("[W]e thinkthat due process requires the Commission to afford a person beinginvestigated the right to confront and cross-examine the witnessesagainst him, subject only to traditional limitations on those rights.").

In addition, the Jenkins Court emphasized that the right to presentevidence on one's behalf is a fundamental element of procedural dueprocess. Id. When the commission met in executive session, a person whowas being investigated could call a "reasonable number of witnesses" totestify, but if the commission held a public hearing, the individualcould only present his own testimony and the "pertinent" writtendeclarations of other witnesses. In a public hearing, the commissioncould deny an individual the right to proffer oral testimony of otherwitnesses, and the commission could refuse to subpoena witnesses anindividual might wish to testify. The Court concluded that the commissionshould not impose such restrictions on a person's ability to present hisversion of the facts.

The Blue Ribbon Commission shares many key similarities with theLouisiana Labor-Management Commission of Inquiry. The Blue RibbonCommission is involved in investigating criminal activity and makingfindings that specific individuals engaged in criminal conduct. Like theLouisiana commission, the Blue Ribbon Commission supplements the effortsof other law enforcement agencies in the investigation of criminalviolations. The Blue Ribbon Commission has the power to adopt its ownbylaws, to employ investigative and other staff members, to coerce theattendance of witnesses, and to compel the production of documentaryevidence.

The Blue Ribbon Commission, like the Louisiana commission, does notfunction in an adjudicative capacity in the same manner that a courtdoes. The Louisiana commission did not have the power to renderadjudications that were binding on any persons; it could only makerecommendations to the governor for him or her to take further action toprosecute named persons. Likewise, the reports issued by the Blue RibbonCommission are not obligatory, and the Commission can only offerrecommendations that Defendant Calderón refer a particular matterto the Department of Justice for prosecution.

The Jenkins Court concluded that the findings prepared by the Louisianacommission were very much like an official adjudication of criminalculpability by a court of law. Id. at 427. Likewise, we find that thereports submitted by the Blue Ribbon Commission to DefendantCalderón are very similar to an official determination of guilt bya legal tribunal. The Blue Ribbon Commission uses its broad powers tocollect testimonial and documentary evidence that named individualscommitted criminal offenses, and it then makes findings that thoseindividuals were guilty of criminal activity. We find that Jenkinsgoverns the present case.

Defendants have attempted to distinguish Jenkins from the case at bar.Defendants argue that the main opinion in Jenkins carries limitedweight, because it is only a plurality opinion. Defendants also emphasizethat the Court only held that the plaintiff had alleged a cause ofaction, not that he had prevailed on his constitutional claim. Defendantsargue that Jenkins does not apply here because of the following allegedcharacteristics of the Blue Ribbon Commission, which were not shared bythe Louisiana commission: (1) the Blue Ribbon Commission is notresponsible for law enforcement and may render recommendations forlegislative orother measures; (2) the Blue Ribbon Commission may act suasponte and is independent from the Governor; (3) the Blue RibbonCommission operates in strict confidentiality; (4) the Blue RibbonCommission cannot issue subpoenas and cannot compel individuals to appearbefore it; (5) the Blue Ribbon Commission does not make findings ofprobable cause of criminal violations; (6) the Blue Ribbon Commission isnot required to report its findings to law enforcement authorities andmay only issue reports to the Governor; and (7) the Blue RibbonCommission does not have the power to initiate criminal proceedings.Furthermore, Defendants argue that Jenkins does not apply, because thedefendants therein had been accused of coercing government officials intofiling false criminal charges and intimidating judicial officers.Defendants conclude that Hannah v. Larche, 363 U.S. 420 (1960),controls.

This court is not persuaded by Defendants' arguments. We disputeseveral of Defendants' characterizations of the Blue Ribbon Commission.We find that the Blue Ribbon Commission serves "a function very much akinto making an official adjudication of criminal culpability." SeeJenkins, 395 U.S. at 427. The Commission makes actual findings that namedindividuals are guilty of criminal violations as part of a process ofcriminal prosecution. Therefore Jenkins, not Hannah, governs.

Furthermore, we are troubled by the secrecy surrounding the Blue RibbonCommission's investigations. See Hannah, 363 U.S. at 496 (Douglas, J.,dissenting). The veil of secrecy shrouding the Commission's hearingsincreases the probability that abuses might take place behind closeddoors.

This court finds that the procedures employed by the Blue RibbonCommission are far less protective of Plaintiffs' procedural rightscompared with those applied by the Louisiana Labor-Management Commissionof Inquiry that were analyzed by the Supreme Court in Jenkins.

The Jenkins Court found that the Louisiana commission's restrictions onindividuals' right to confront and cross-examine witnesses wereunconstitutional. Id. at 428. The Louisiana commission allowedindividuals under investigation only a limited opportunity to examineother witnesses. An individual testifying before the commission could askthat particular questions be asked of other witnesses, but only thosequestions approved by the commission would be submitted to the witnesseswho testified before it.

In the present case, individuals who are being investigated by

the Blue Ribbon Commission have no right to confront and cross-examinewitnesses testifying against them. Persons who are under scrutiny by theCommission are not even informed of the names of the individuals offeringevidence against them. As the Supreme Court noted in Jenkins, the rightto confront and cross-examine witnesses is one of the most fundamentalelements of due process. Id. Persons investigated by the Blue RibbonCommission have no opportunity to examine witnesses offering testimonythat they have engaged in criminal conduct.

Furthermore, the Jenkins Court found that the Louisiana commission'srestrictions on an individual's ability to present evidence on his ownbehalf were of questionable constitutionality. Id. at 429. ("[A] person'sright to present his case should not be left to the unfettered discretionof the Commission."). When the Louisiana commission met in executivesession, a person being investigated could present testimony from a"reasonable number of witnesses." When thecommission held publichearings, an individual under investigation could only offer his owntestimony and the "pertinent" written statements of other witnesses. Whenit met in public hearings, the Louisiana commission could prevent aperson under investigation from presenting the oral testimony of otherwitnesses in his defense.

Here, the procedural regulations of the Blue Ribbon Commission do notoffer individuals under investigation any opportunity to produce otherwitnesses to testify on their behalf. The right to present witnesses onone's behalf is a critical component of due process, see id., andPlaintiffs were not afforded any opportunity to do so.

We apply the balancing test of Mathews v. Eldridge, 424 U.S. 319,334-35 (1976). The private interest affected by the official action,Plaintiffs' interest in being free from investigation and prosecution forcriminal violations in an unconstitutional manner, is obviously a vitalinterest, considering that Plaintiffs risk facing substantial terms ofimprisonment. The current procedure employed by the Commission entails asubstantial risk that Plaintiffs will be wrongly deprived of theirliberty interest. The use of additional procedural safeguards would behighly valuable in securing compliance with the Fourteenth Amendment. Ifan individual being investigated by the Blue Ribbon Commission wasprovided a meaningful opportunity to present documentary and testimonialevidence to a neutral decision-maker and to confront and cross-examinewitnesses offered against him or her, such measures would help ensurethat Defendants comply with due process. See 3 ROTUNDA & NOWAK, §17.8. The state's burden in allowing such safeguards would be moderate incomparison with the grave liberty interests at stake.

In conclusion, we find that Defendants' treatment of Plaintiffs in thecontext of the Commission's investigations did not comport with theconstitutional requirement of fundamental fairness.10 Plaintiffs werenot afforded "an opportunity to be heard "at a meaningful time and in ameaningful manner.'" Amsden v. Moran, 904 F.2d 748, 753 (1st Cir. 1990).We conclude that Plaintiffs have prevailed on the merits of theirprocedural due process claim. Defendants argue that Plaintiffs haveadequate post-deprivation state-law remedies for the violations of theirprocedural due process rights. We disagree. "A procedural due processclaim is not actionable unless, inter alia, no adequate "post-deprivationremedy' is available under state law." Perez-Ruiz v. Crespo-Guillen,25 F.3d 40, 42 (1st Cir. 1994)

In procedural due process claims, the deprivation by state action of a constitutionally protected interest in "life, liberty, or property" is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law. . . . The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law.

Zinermon v. Burch, 494 U.S. 113, 125-26 (1990). Since we have alreadyexamined the procedures used by the Commission and found them wanting, weturn to the state-law remedies available to Plaintiffs. Since Defendantshave not specified which state-law post-deprivation causes of actionallegedly provide adequate remedies to Plaintiffs, we are left to use ourimaginations.

Plaintiffs may be able to frame their local law compensatory damagesclaim as one for defamation.11 Since Plaintiffs were high-levelofficials in the Rosselló administration, they would qualify aspublic figures. Pages v. Feingold, 928 F. Supp. 148, 154 (D.P.R. 1996). Toprevail on a defamation claim, a public figure must demonstrate by clearand convincing evidence that "a falsehood [was] published with "actualmalice' by the defendant (meaning a knowing falsehood or one maderecklessly)." Emerito Estrada Rivera-Isuzu de P.R., Inc. v. ConsumersUnion of United States, Inc., 233 F.3d 24, 27 (1st Cir. 2000). We findthat the barriers to relief through a lawsuit for defamation are so highas to constitute an inadequate remedy for the deprivation of Plaintiffs'procedural rights.

Puerto Rico tort law provides a cause of action for maliciousprosecution. To state a cause of action, a plaintiff must demonstrate that"(1) the criminal action was initiated and instigated by the defendant;(2) the criminal action terminated in favor of the plaintiff; (3) thedefendant initiated the action with malice and without probable cause;and (4) as a consequence, the plaintiff suffered damages." Negron-Riverav. Rivera-Claudio, 204 F.3d 287, 290 (1st Cir. 2000). We conclude that anaction for malicious prosecution would provide an inadequatepost-deprivation remedy to Plaintiffs. Most importantly, Plaintiffs wouldhave to be prosecuted and then acquitted in state court. Since formalcharges have not been filed against Plaintiffs, it is questionable, atbest, whether Plaintiffs would be able to avail themselves of an actionfor malicious prosecution.

2. Irreparable Iniury

To award equitable relief, this court must conclude that

Plaintiffs would suffer an irreparable injury in the absence of aninjunction. "When an alleged deprivation of a constitutional right isinvolved, most courts hold that no further showing of irreparable injuryis necessary." llA CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE ANDPROCEDURE § 2948.1 (2d ed. 1995). "The threat of prosecution underthe penal provisions of the pertinent laws establishes the threat ofirreparable injury required by traditional doctrines of equity." GlenwalDev. Corp. v. Schmidt, 336 F. Supp. 1079, 1083 (D.P.R. 1972). SincePlaintiffs are at risk of criminal prosecution as a result of Defendants'conduct, we find that they have met the requirement of irreparable injurynecessary for injunctive relief.

3. Balance of Equities

To award a permanent injunction, a court must find that "the harm toplaintiffs would outweigh the harm the defendant would suffer from theimposition ofan injunction." A.W. Chesterton Co., 128 F.3d at 5.

As discussed above, Plaintiffs would suffer serious injury if thiscourt did not impose an injunction upon Defendants. DefendantCommissioners have already accused Plaintiffs of committing negligence inthe performance of their public duties in connection with the Barbosa 306transaction, and they are subject to imprisonment for a term of up to sixyears pursuant to 33 L.P.R.A. § 4366 and 33 L.P.R.A. § 4391.Furthermore, the PRIME report charges Plaintiff Pagán of havingcommitted undue intervention in the performance of contracts, biddingprocedures, or government operations in violation of 33 L.P.RUA. §4353a. That statute authorizes a term of imprisonment of up to fiveyears. Plaintiff Pagán may also be prosecuted for destruction ofpublic documents under 33 L.P.R.A. § 4356, and the penalty for thatviolation is four to ten years of imprisonment. Part II of the PRIMEreport, which was submitted to Defendant Calderón on November 1,2001 and was released to the public while this case was sub judice,contains further findings of potential criminal conduct allegedlycommitted by Plaintiff Pagán that will cause him greater harm andan increased risk of prosecution.12 The second part of the PRIMEreport also charges other government officers with criminal misconductand extends its imputations of criminal activity to violations of theprofessional canons of ethics governing lawyers by the law firm ofCancio, Nadal, Rivera, Diaz and Berrios, private attorneys retained byPRIME. The law firm has not been given an opportunity to defend itselfagainst such serious accusations. See Ct. Exh. 8-2 (Sworn Statement ofCarlos Manuel Rivera Vicente. Esq.). The Commission may decide toinitiate further investigations involving Plaintiffs. We find that anyharm that would be suffered by Defendants due to the issuance of aninjunction pales in comparison to the harm that would be experienced byPlaintiffs in the absence of an injunction. Therefore, we conclude thatthe balance of the equities weighs in favor of awarding injunctiverelief.

4. Public Interest

This court must determine if the public interest would be harmed bythe imposition of the injunctive relief requested by Plaintiffs. As themembers of the Commission themselves have noted in their Barbosa 306report, numerous government agencies, including the Comptroller'sOffice, the Government Ethics Office, the Department of Justice, theSpecial Independent Prosecutor's Office, the Office of Management andBudget, and the Legislative Assembly, are already involved withinvestigating corruption of government officials and promoting theefficient use of public funds. Pls.' Exh. 4. This court concludes thatthe public interest would not be harmed in any way from the imposition ofan injunction againstDefendants, since there are already numerousexisting organizations which perform the same function of investigatingcorruption. Furthermore, the public interest would likely be betterserved by an award of injunctive relief preventing Defendants fromfurther abusing the due process rights of individuals, whether they bePlaintiffs or other persons similarly situated.

This court hereby grants Plaintiffs' request for a permanent injunctionprohibiting Defendants from holding investigative hearings withoutaffording individuals under investigation substantial opportunity todefend, among other rights, the right to present testimonial anddocumentary evidence on their behalf and to confront and cross-examinewitnesses.

E. Declaratory Relief

Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 (1994),federal courts may enter a judgment declaring the rights of parties inrelation to each other.13 "In general, a party seeking declaratoryrelief must establish that the federal court has subject matterjurisdiction . . . and the existence of an actual controversy." 12 JAMEsWM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 57.09 (3d ed. 2000). Ifthese two requirements have been met, a federal court enjoys broaddiscretion in deciding whether to award a declaratory judgment. See Ernst& Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 534 (1st Cir.1995); 12 MOORE ET AL., § 57.09. In deciding whether to grantdeclaratory relief, courts consider whether a declaratory judgment wouldfurther the interests of the parties or the public, and whether suchrelief would clarify pending legal questions. Metro. Prop. & Liab. Ins.Co. v. Kirkwood, 729 F.2d 61, 62 (1st Cir. 1984).

Plaintiffs request a declaratory judgment concluding that the BlueRibbon Commission and Executive Order No. 2001-06 are unconstitutional.We conclude that the public interest would be furthered by an award ofdeclaratory relief. This court hereby declares that the proceduresemployed by the Blue Ribbon Commission in the investigation of publiccorruption are fundamentally unfair and contravene the requisites of thedue process clause of the Fourteenth Amendment.

F. Qualified Immunity

Qualified immunity is an affirmative defense shielding public officialsfrom civil damages so long as their conduct does not violate anyclearly-established statutory or constitutional right of which a reasonableperson would be aware. See Harlow v. Fitzgerald, 457 U.S. 800,818 (1982); Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 704(1st Cir. 1993). See also Mitchell v. Forsyth, 472 U.S. 511, 525-26(1985). In certain situations, private individuals such as DefendantCommissioners may also raise a defense of qualified immunity, becausethey perform the same function as public officials. Frazier v. Bailey,957 F.2d 920, 928-29 (1st Cir. 1992). The doctrine consists of twoanalytical prongs.

First, the court must determine as a matter of law whether theconstitutional right in question was clearly established atthe timeof the alleged violation. See Martimez-Rodriguez v. Colon-Pizarro,54 F.3d 980, 988 (1st Cir. 1995). Second, the court must decide whethera reasonable, similarly situated official would understand that thechallenged conduct violated the established constitutional right. SeeAnderson v. Creighton, 483 U.S. 635, 638-40 (1987); Frazier, 957 F.2dat 929. "The contours of the right must be sufficiently clear thata reasonable official would understand that what he is doing violatesthat right." Anderson, 483 U.S. at 640.

With regard to the first prong of the analysis, it has been clearlyestablished that individuals have a right to be free from investigation,prosecution, and subsequent incarceration in a manner that tramples uponthe procedural safeguards enshrined in the Constitution. There existelaborate procedural mechanisms, at both the state and federal levels, toensure that no individual is convicted of a crime and deprived of hisliberty in a manner that is fundamentally unfair, i.e., in a manner thatviolates due process. See 1 LAFAVEETAL., § 2.7(a) for an exhaustivelist of the procedural safeguards required pursuant to the due processclause in the context of criminal proceedings. With regard to thedetermination of probable cause that a criminal violation has occurred,the Supreme Court clearly held in Jenkins v. McKeithen, 395 U.S. 411(1969), that an individual being investigated for alleged criminalactivity must be afforded substantial opportunity to present evidence,including oral testimony from other witnesses, on his or own behalf andto confront and cross-examine witnesses. "Government officials arecharged with knowledge of constitutional developments, including allavailable decisional law." Tribble v. Gardner, 860 F.2d 321, 324 (9thCir. 1988). Consequently, we conclude that, at the time of the eventsunderlying this lawsuit, it had been clearly established that Plaintiffshave a Fourteenth Amendment right to certain due process safeguards inthe context of a probable-cause determination. We now turn to the secondprong of the analysis, whether a reasonable, similarly situated officialwould have recognized that the challenged conduct violated Plaintiffs'due process rights. The second prong of the analysis, "while requiring alegal determination, is highly fact specific." Swain v. Spinney,117 F.3d 1, 9 (1st Cir. 1997).

Plaintiffs Pagán and Aponte were both served with summons toappear before the Blue Ribbon Commission by armed law enforcement agentswho visited their homes. According to Executive Order 2001-06, theCommission had the authority to "require the assistance of functionariesbelonging to the Executive Branch in order to obtain, through themechanisms provided by law, the appearance of any person or the deliveryof any document or object" (emphasis added). Docket Document No. 7, Exh.1. Through the executive order, Defendant Calderón ordered theDepartment of Justice and the other agencies under the authority of LaFortaleza to provide the Commission with the support necessary for it tosuccessfully complete its mission. Id.

At the hearings before the Commission, Plaintiffs were not advised ofany specific right that may have attached to them in relation to theCommission's investigation. Plaintiffs were not informed that they had aright to an attorney. Plaintiffs were not advised that they had a rightto confront and cross-examine witnesses testifying against them, and theywere not given any opportunity to present testimonial evidence from otherwitnesses. There is nothing in the record showing that Plaintiffs wereeven informed of the names ofthe witnesses testifying against them.Plaintiffs were not permitted to record the proceedings, and they werenot even allowed to take notes. One of the Commission's investigators,attorney Vilá-Pérez, explained to Plaintiff Pagánthat his requests were denied because the hearing was akin to a grandjury proceeding.

Following these hearings and after the conclusion of theinvestigation, Defendants held news conferences accusing Plaintiffs ofcriminal misconduct. More importantly, Defendant Calderón referredthe Commission's findings and the evidence it had obtained to theDepartment of Justice for further action.

We find that on these facts, no reasonable official could haveunderstood that the Blue Ribbon Commission operated in a manner thatrespected Plaintiffs' due process rights. Accordingly, we conclude thatDefendants are not protected by the defense of qualified immunity.



It is beyond peradventure that individuals in positions of public trustmust maintain the highest standards of integrity with respect to thedisbursement of public funds. We do not pass judgment on whether, infact, Plaintiffs Aponte and Pagán committed misconduct inconnection with the transactions investigated by the Blue RibbonCommission. For purposes of the present case, Plaintiffs' guilt orinnocence is irrelevant. We simply hold that the procedures applied bythe Commission in its investigations were fundamentally unfair to personswho were being investigated by the Commission, and those proceduresinfringed upon Plaintiffs' due process rights under the Constitution.

"Secret inquisitions are dangerous things justly feared by free men everywhere. They are the breeding place for arbitrary misuse of official power. They are often the beginning of tyranny as well as indispensable instruments for its survival. Modern as well as ancient history bears witness that both innocent and guilty have been seized by officers of the state and whisked away for secret interrogation or worse until the groundwork has been securely laid for their inevitable conviction.'

Hannah, 363 U.S. 420, 496 (1960) (Douglas, J., dissenting) (internalcitation omitted).

We DECLARE that the procedures employed by the Blue Ribbon Commissionviolate the due process clause of the Fourteenth Amendment of the UnitedStates Constitution. This court GRANTS Plaintiffs' request for apermanent injunction prohibiting Defendants from holding investigativehearings without providing individuals under investigation substantialopportunity to present testimonial and documentary evidence on theirbehalf and to confront and cross-examine witnesses. This injunction isbinding upon Defendants, as well as their agents and employees. See FED.R. Clv. P. 65(d).

The exhibits to the Commission's Barbosa 306 and PRIME reports, as wellas the other sworn statements and notes of interviews of witnessesobtained by the Commission over the course of these investigations, willbe made available to Plaintiffs. The purpose of this disclosure is topartially refund Plaintiffs for the void left by the practices of the BlueRibbon Commission that negated fundamental fairness to these investigatedPlaintiffs. To do otherwise would grant Defendants a windfall to whichthey are not entitled. This minimal reparation stands pale compared tothe injuries suffered.

This court PARTIALLY GRANTS Defendants' motion to dismiss thecomplaint,and we hereby DISMISS Plaintiffs' First Amendment and equalprotection claims. Docket Document Nos. 13. 16. We DENY Defendants'motions to dismiss Plaintiffs' due process claims, Docket Document Nos.13. 16. 25, and we DENY Plaintiffs' motion for summary judgment, DocketDocument No. 21.14

A scheduling order on the remaining triable issues will be entered.


San Juan, Puerto Rico, this 29th day of November, 2001.






We adopt the following guidelines for investigation by virtue of theauthority conferred by Executive Order issued by Honorable SilaCalderon, Governor of Puerto Rico, on January 31, 2001, AdministrativeBulletin Number 2001-06, which creates the Citizens IndependentCommission to Evaluate Governmental Transactions, and the powers andfaculties inherent upon the same.

The objective of the instant guidelines for investigation is toestablish the environment of the faculties delegated upon theCommission's personnel to summon witnesses, to take statements, and torequire the production of documents, as well as to set forth theguidelines for conducting interviews, and for drafting the findings,product of the analytical process of the evidence compiled. We adopt byreference the provisions and terms defined in the Internal OperationalRegulations of the Commission.

The commission, its members and its personnel must maintain theinvestigative process of the Commission, within the constitutionalprecept of due process of law, and equal protection under the law in itsdealings with witnesses, individuals, officials, and public employees,who may be invited or summoned to appear before same. All matterspertaining to interview methodology and techniques, and to the taking ofstatements from witnesses shall be governed by the internal guidelinesset forth herein. Said methodology and techniques, as well as theinformation derived as a product of their application, may not bedivulged to persons foreign to the Commission.


A. We hereby delegate the following faculties upon members of theCommission's personnel who hold functions of investigation, auditing andlegal counseling:

1. Summoning witnesses, and conducting interviews, in accordance withthe provisions of articles III, IV and V of these guidelines.

2. Transacting the taking of oaths and sworn statements by personscompetent to do so.

3. Requesting assistance from pertinent officers of the ExecutiveBranch, in order to achieve the obtaining from any natural or artificialperson, of oral testimony and of books, letters, documents, and any otherobject which may be necessary for a complete knowledge of the matterunder investigation.

B. Any exercise of the faculty delegated herein shall be previouslyconsultedwith the full Commission, which must approve same. In case ofurgent circumstances, the president may grant approval to a petitionformulated and subsequently refer the matter to the Commission for itsknowledge and determination.


A. The members of the Commission's personnel who have been delegatedthis faculty may summon witnesses verbally, personally, or by telephonefor the purposes indicated in Article II, item A of these guidelines,when the witnesses are willing to appear voluntarily.

B. Whenever it may be necessary, or convement to issue a summons inwriting, it shall be done in the established official form, according tothe instructions indicated hereinafter:

1. The summons must be addressed to the person to be interviewed, orinterrogated. They must clearly indicate the date and time of theappointment, the name of the person before whom the witness must appear,and the physical address and telephone numbers of the place where themeeting or the taking of the statement is going to take place.

2. The summons shall be served adequately in advance of the date andtime of the appearance and, if necessary, the summoned person shall beinformed to bring with him/her the objects or documents pertaining to theinvestigation which may be deemed pertinent. The requests for productionof evidence shall be as specific as possible.

3. The summons shall contain the signature, name and title of theCommission's Executive Director, or in the alternative, of the Presidentor of any of the Commissioners designated to do so. Once completed, thesummons shall be stamped with the seal of the Commission, and it shall beserved. This procedure shall take place by personally delivering a copyto the person summoned, or to an authorized representative, who must signthe original or another copy of same. In the alternative, it shall becertified in an appropriate location place within the form that thesummons was delivered to the summoned person, by the process server,stating the circumstances of the service. The execution of the service ofsummons shall not be affected if the person summoned refuses to sign.

4. The summons for the appearance of witnesses or for the productionof documents may be served by a member of the Commission's personnel whois not the person who issued same, or by persons working for thegovernmental agencies designated by the Executive Order to providesupport for the Commission. The summons may be served by certified mailwith return receipt requested, whenever the correct mailing address isknown.

5. If the persons summoned fail to appear on the date, time and placeindicated, or if having appeared, they still refuse to testify,completely or partially, and/or if they refuse to deliver, completely orpartially, the documents or objects that were requested from them, themember of the Commission's personnel who issued the summons will informthe Commission, which will determine what actions to take. This mayinclude stating the behavior of the summoned person in the report to berendered by the Commission in its day, and/or requesting the assistanceof pertinent officers of the Executive Branch so that, through themechanisms provide by law, they secure the appearance and testimony ofthe person, and/or the delivery of the documents or objects required;and/or to refer the matter to the corresponding governmental agency sothat said agencymay take whatever measures in their own judgment theydeem necessary.


A. The interviews and the taking of statements from witnesses shall beconducted by the member of the Commission's personnel in charge of theinvestigation, who may be accompanied by another member of the personneldesignated do so, who will serve as an assistant in the recording ortranscription of the statements in the meeting or as a witness to theevents. The person in charge of the investigation may request thepresence of a Prosecutor, or a representative from the Department ofJustice during any interview, whenever in his/her judgment it may serveto advance the purposes of the interview.

B. The interviews and interrogatories may be recorded on magnetictape, diskettes, or by any other means such as shorthand or stenography,to be later transcribed and certified as correct by the person whoconducted the interview, and the one who made the transcript. They mayalso be taken in handwriting or directly to a machine while the witnessis testifying.

C. During the interviews of witnesses who are not suspects of havingincurred in violations of law or of regulations with penal consequences,the presence of attorneys shall not be allowed, nor that of personsforeign to the Commission, except whenever it may be strictly necessaryso that the interviewee will reveal all of the information that he/shemay have. In those cases, the person accompanying the deponent will beadvised that he/she may not interfere in any form or fashion in theinvestigative process.

D. In order to protect the confidentiality of the evaluations that theCommission must perform, it is absolutely forbidden to provide witnesseswith copies of the statements rendered by them, or to allow them torecord the interviews or to take notes regarding the questions formulatedor their answers. The witness will only be allowed to examine thatevidence relevant to the matter under investigation, whenever this maycontribute to advance the purposes of the interview.

E. When a person is being interviewed, who is suspected of havingincurred in violations of law or of regulations which are of a penalnature, the person shall be advised of his/her constitutional rights. Ifthe person decides to testify voluntarily, the advisements formulatedshall be made part of the body of the statement, as well as the fact thatthe person has assured that he/she has understood same, and that he/shehas decided to testify freely, and consciously. If the person shouldrefuse to testify, a minute shall be taken of all of the details of theevents that have transpired. The Commission must be notified of thisfact, and it will take whatever measures are necessary for thecontinuation of the proceedings.

F. At any moment during the process of the investigation, in which theperson in charge of same has any evidence, further than a mere suspicion,that someone may have incurred in criminal conduct, he/she shallimmediately report this to the Commission. Once the commission hasverified the preceding, it may refer the matter to the Department ofJustice for whatever action said agency may deem appropriate.

G. The Commission shall use for the purposes of its owninvestigations, all of the evidence obtained by the Department ofJustice, or any other governmental agency with powers of investigation,whichsaid agencies have decided in their sound judgment to share withthe Commission.


A. The spontaneous contribution of data or situations arriving fromcitizens may be taken through the corresponding form created to thateffect, for the analysis and classification of same. When the informationsubmitted does not enter the realm of what the Commission has beenentrusted to perform, the person shall be advised regarding that fact,and in appropriate cases, the person will be referred to the pertinentagency.

B. When a person has voluntarily offered to provide information to theCommission, but wishes to do so in an anonymous manner, the member of theCommission's personnel who has attended to that person shall urge theinformant to reveal his identity. If the informant insists on remaininganonymous, the information offered shall be received, but saidinformation may only be used to identify matters which may meritinvestigation in an independent manner. Likewise same shall be done withanonymous information received in writing. The findings to be included inthe Commission's report shall be based exclusively on the resultsobtained through independent investigation, and they will never be baseddirectly upon anonymous information.


Citizens Independent Commission to Evaluate Governmental TransactionsGuidelines for Investigation and Drafting of Reports

A. The personnel will keep the Commission duly informed of the progressand results of the investigations, through periodic reports, eitherverbally or in writing. When drafting the reports, they shall always takeinto account the constitutional principle of presumption of innocence,and the norm that the actions of governmental agencies are covered by apresumption of regularity and correction.

B. The evidence compiled during the investigation which may serve as abasis for the evaluation and recommendations of the Commission shall beforwarded to the Governor together with the report that the Commissionwill render to her. Said report may include recommendations in ashort-term or long-term basis for the taking of those measures which theCommission may consider convement, including, but not limited to,suggestions for the adoption of new statutory or regulatory guidelineswhich govern the transactions under study, or for the modification ofexisting regulations, or to proceed with administrative, civil orcriminal efforts against determined persons.


These norms shall become effective subsequent to their approval bythe Commission.

CERTIFICATE: I certify that the instant Guidelines for Investigation andDrafting of Reports were adopted by the Citizens Independent Commissionfor the Evaluation of Governmental Transactions by unammous vote of itsCommissioners, during the regular meetings of the Commission on February27, and March 27, 2001.

(Signed; Illegible) Ms. Brenda N. León-Suárez Executive Director







The Court marks as exhibits two groups of documents related to trialexhibits Plaintiffs' Exhibits 4 and 8. Plaintiffs' Trial Exhibit 4 is theBarbosa 306 Report issued by the Blue Ribbon Commission. Court's Exhibits4-1, 4-2, 4-3 are the exhibits to the Barbosa 306 Report (4-1 containstheexhibits to the Barbosa 306 Report; 4-2 are Sworn Statements relatedto the Barbosa 306 investigation, and exhibit 4-3 contains the reports ofinterviews. Regarding Plaintiffs' Trial Exhibit 8, (the Blue RibbonCommission Report of the PRIME transaction), the Court's Exhibits are asfollows: Court's Exhibit 8-1 corresponds to the PRIME Report Part II, andCourt's Exhibit 8-2 corresponds to the Sworn Statements and reports ofinterviews generated in that investigation.

/s/____________________________ REBECCA AGOSTRINI, DEPUTY CLERK

1. The statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

2. In the government program proposed by Defendant Calderónduring her campaign, she suggested the creation of a Blue RibbonCommission "that will examine the major or more controversialtransactions carried out by the present government." Pls.' Exh. 21. Atthe injunction and declaratory judgment hearing on November 8, 2001,Defendant Calderon testified that she had been referring to the NewProgressive Party administration of Governor Rosselló that hadbeen in power at the time. In the government plan titled "Frontal Attackon Corruption and Certain Punishment for the Corrupt" published on thewebsite of La Fortaleza, the Governor's Office, Defendant Calderóndeplored the fact that "[t]he ongoing public spectacle of rampantcorruption which has been exhibited by the present Administration hasembarrassed the people of Puerto Rico and outraged our citizenry." Pls.'Exh. 22. Defendant Calderón was again referring to the Rosselloadministration.

3. The record does not include any published legal opinion or officialdocument by the Commissioners regarding the constitutionality of the BlueRibbon Commission, nor is the court aware that any such documentexists.

4. León-Suárez only provided Plaintiff Aponte with a copyof the first set of operational bylaws approved by the Commission, notthe second set of procedural bylaws that governed the procedure forcollecting information from witnesses that remained strictly confidentialuntil it surfaced at the hearing held by this court.

5.T his is the evidence which the court examined in camera and whichPlaintiffs have never seen. Although we examined thirteen boxes ofmaterial, only the formal exhibits to the official reports, copies of thesworn statements, and reports of interview have been marked as CourtExhibits 4-1, 4-2, 4-3 (Barbosa 306 transaction), and Court Exhibits 8-1and 8-2 (PRIME Report, Part II, and sworn statements and reports ofinterview)

6. Because Defendant Commissioners' brief is imprecisely drawn, at theoutset it is unclear whether this court should treat the motion as a Rule12(b)(6) motion or as a Rule 56 motion. The brief is titled "Motion toDismiss and/or [for] Summary Judgment," and Defendant Commissioners statetherein that this court may choose to apply either the Rule 12(b)(6) orthe Rule 56 standard in disposing of the motion. Defendant Commissionershave attached a statement of facts not in controversy as well as twoexhibits, an affidavit signed by León-Suárez and a copy ofthe Barbosa 306 report. We decide to treat the motion as one broughtpursuant to Rule 12(b)(6).

7. The parties had cluttered the record with many nebulous memorandaraising a multitude of issues, some of which were of questionablerelevance and merit. On October 16, 2001, this court issued an Orderclarifying the issues that warranted attention. Docket Document No. 35.We warned the parties that the injunctive relief hearing scheduled forNovember 6, 2001, could be consolidated with a trial on the merits inaccordance with Federal Rule of Civil procedure 65(a)(2). FED. R. CIV.P. 65(a)(2). At the conclusion of the hearing, the parties agreed thatthey did not have any further evidence to present, so we consolidated theinjunctive relief hearing with the trial on the merits.

8. Defendants have not argued that they were private actors in thecontext of the present case. We find that Plaintiffs have made theshowing of public action necessary to invoke the protections of theUnited States Constitution. For an illustrative discussion of thepublic/private dichotomy and the state action requirement, see Perkins v.Londonderry Basketball Club, 196 F.3d 13 (1st Cir. 1999).

9. In addition, under certain circumstances, a person suspected ofhaving committed a crime has the right to be advised of his or herconstitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436(1966). The Miranda rules are "not themselves rights protected bythe Constitution but [are] instead measures to insure that the rightagainst compulsory self-incrimination [is] protected." Michigan v.Tucker, 417 U.S. 433, 444 (1974).

10. Nothing in our present ruling affects the procedures employed bygrand juries in their investigations of criminal activity. See Hannah,363 U.S. at 497-508 (Douglas J., dissenting), for a discussion of theunique historical role of grand juries in our criminal justicesystem.

11. In their complaint, Plaintiffs seek compensatory damages forDefendants' alleged violation of 31 L.P.R.A. § 5141. It is unclearfrom the pleadings whether Plaintiffs' claim is one for defamation oranother tort.

12. Although the two known Blue Ribbon Commission investigationsinvolving Plaintiffs have concluded and the findings have been submittedto the Governor and released to the public, we find that the present caseis not moot for purposes of assessing Plaintiffs' request for injunctiverelief. There is a reasonable expectation that Defendants would continueto violate individuals' constitutional rights, if this court did notissue an injunction, and Defendants' previous violations continue toaffect Plaintiffs. See Metro-Goidwyn Mayer, Inc. v. Safety Prods., Inc.,183 F.3d 10, 15 (1st Cir. 1999). Defendants have not met the heavy burdenof showing that their past violations of individuals' procedural rightsprobably would not recur. See id. There is nothing in the record to showthat Defendant Commissioners are disinclined to perform theirinvestigations in the same manner as they did previously.

13. The statute stipulates:

In a case of actual controversy within its jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

28 UUS.C. § 2201(a).

14. The issues raised in Plaintiffs' motion for summary judgment havealready been addressed by this court in the context of Plaintiffs'request for injunctive relief.

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