Rivera Puig v. Garcia Rosario
Case Date: 12/23/1992
Court: United States Court of Appeals
Docket No: 92-1239
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December 23, 1992 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ Nos. 92-1239 92-1397 MIGUEL RIVERA-PUIG, Plaintiff, Appellee, v. HON. GABRIEL GARCIA-ROSARIO, Defendant, Appellant. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jos A. Fust , U.S. District Judge] ___________________ ____________________ Before Torruella, Circuit Judge, _____________ Campbell, Senior Circuit Judge, ____________________ and Stahl, Circuit Judge. _____________ _____________________ Anabelle Rodr guez, Solicitor General, Department of ____________________ Justice, for appellant. Juan R. Marchand-Quintero for appellee. _________________________ ____________________ ____________________ TORRUELLA, Circuit Judge. This appeal presents ______________ important constitutional issues requiring us to strike a balance between state-created due process and privacy concerns, and freedom of the press rights protected by the First Amendment of the United States Constitution. Because we find the latter paramount in this case, and in light of the Supreme Court's decision in Press-Enterprise Co. v. Superior Court of California, ____________________ ____________________________ 478 U.S. 1 (1986) ("Press Enterprise II"), we affirm the district ___________________ court's decision1 declaring unconstitutional the closure provision of Rule 23(c) of the Puerto Rico Rules of Criminal Procedure, P.R. Laws Ann. tit. 34, App. II R. 23(c) (1991).2 ____________________ 1 Reported at Rivera-Puig v. Garc a-Rosario, 785 F. Supp. 278 ___________ ______________ (D. P.R. 1992). 2 Rule 23(c) of the Puerto Rico Rules of Criminal Procedure provides: (c) Proceeding during the hearing. Proceeding during the hearing. If the person appears at the preliminary hearing and does not waive it, the magistrate shall hear the evidence. The ___ hearing shall be held privately unless _________________________________________ the defendant requests at the _________________________________________ commencement thereof that it be public. ________________________________________ The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. The prosecuting attorney may be present at the hearing and he may also examine and cross-examine all witnesses and introduce new evidence. Upon being requested to do so, the prosecuting attorney shall put at the disposal of the person the sworn statements of the witnesses whom he called to testify at the hearing that he has in his possession. If in the opinion of the magistrate the evidence shows that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the magistrate shall forthwith hold him to answer for the commission of the offense To place this case in its legal context, we will first discuss the Supreme Court's ruling in Press-Enterprise II. ___________________ I. PRESS-ENTERPRISE II I. PRESS-ENTERPRISE II ___________________ Section 868 of the California Penal Code required preliminary hearings to be open to the public unless "exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial." Cal. Penal Code 868 (West 1985). A defendant charged with 12 counts of murder and subject to the death penalty requested closure of his preliminary hearing. Defendant's unopposed motion was granted. At the conclusion of the hearing, the magistrate denied Press Enterprise's request for the release of the transcript of the proceedings, and sealed the record. The state and Press- Enterprise lost their appeal to the superior court on the grounds that release of the transcript might prejudice defendant's right to a fair and impartial trial. After the defendant waived his right to a jury trial, the superior court released the transcript. Appeals to the higher courts in California nevertheless continued. These courts ruled that there was no general First Amendment right of access to preliminary hearings, and that the defendant's right to a fair and impartial trial by a jury uninfluenced by news accounts ____________________ in the appropriate Part and Division of the Court of First Instance; otherwise the magistrate shall exonerate him and order that he be set free. . . . (emphasis added). -3- shifted the burden in favor of closure if defendant established a reasonable likelihood of substantial prejudice. Ultimately, the case arrived at the United States Supreme Court. The Court noted that maintaining a criminal trial process open to neutral observers is an important means of assuring a fair trial as well as maintaining the appearance of fairness. Press-Enterprise II, 478 U.S. at 7. It then discussed ___________________ what it called the "tests of experience and logic." If a proceeding passes these tests, a qualified First Amendment right to public access attaches. Id. at 9. These tests are comprised ___ of two considerations: (1) whether a tradition of accessibility to the type of hearing in question exists; and (2) "whether public access plays a significant positive role in the functioning of the particular process in question." Id. at 8. ___ Applying these tests to California's preliminary hearing, the Court first found that state and federal courts have almost uniformly conducted preliminary hearings in open court. Id. at 10-11. ___ Under the second consideration of the tests, the Court found that public access to the California preliminary hearings would play a significant positive role in the actual functioning of the process. Id. at 11-12. The Court reasoned that it had ___ already determined in prior cases that public access plays a significant role in criminal trials. Id. It then concluded that ___ the "California preliminary hearings are sufficiently like trials to justify the same conclusion." Id. at 12. In both criminal ___ -4- trials and the California preliminary hearing, the accused has an absolute right to: (1) an elaborate preliminary hearing before a neutral magistrate; (2) personally appear at the hearing; (3) representation by counsel; (4) cross-examine hostile witnesses; (5) present exculpatory evidence; and (6) exclude illegally obtained evidence. Id. at 12-13. In addition, in the California ___ preliminary hearing, if the magistrate finds probable cause, he binds the accused over for trial, which in most cases leads to a guilty plea. Consequently, "the preliminary hearing is often the final and most important step in the criminal proceeding," and "in many cases provides 'the sole occasion for public observation of the criminal justice system.'" Id. (quoting San Jose Mercury- ___ _________________ News v. Municipal Court, 638 P.2d 655, 663 (1982)). The Court ____ _______________ commented that the very absence of a jury in these proceedings makes access even more important as "an inestimable safeguard against corrupt or overzealous prosecutor[s] and . . . compliant, biased, or eccentric judge[s]." Id. ___ Accordingly, the Court ruled that proceedings must remain open unless specific, on-the-record findings demonstrate that "'closure is essential to preserve higher values and is narrowly tailored to serve that interest.'" Id. at 13-14 ___ (quoting Press-Enterprise Co. v. Superior Court ("Press- _____________________ ________________ ______ Enterprise I"), 464 U.S. 501, 510 (1984)). Against this legal _____________ backdrop we consider the present case. II. FACTUAL BACKGROUND II. FACTUAL BACKGROUND __________________ On April 4, 1991, Miguel Rivera-Puig ("Rivera-Puig"), a -5- newspaper reporter for the San Juan, Puerto Rico daily El Vocero _________ de Puerto Rico ("El Vocero"), sought access to a preliminary _______________ _________ hearing before the Hon. Gabriel Garc a-Rosario, a district court judge of the Commonwealth of Puerto Rico. Rivera-Puig filed a written request, as a newspaper reporter, seeking physical access to the proceedings, or a recording of the hearing.3 Judge Garc a-Rosario denied this request. Rivera-Puig requested access to another preliminary hearing before the same judge on January 16, 1992. The judge also denied this request. Appellant candidly admits that the exclusion of the press and public from preliminary hearings is the rule, rather than the exception, pursuant to the requirements of Rule 23(c). In the face of this barrier Rivera-Puig went in search of legal redress for his federal constitutional claim. III. THE DISTRICT COURT PROCEEDINGS III. THE DISTRICT COURT PROCEEDINGS ______________________________ On January 17, 1992, Rivera-Puig filed an action in the United States District Court for Puerto Rico seeking a declaratory judgment that the Rule 23 closure provision was unconstitutional and an injunction against enforcement of the rule. Although the suit named Judge Garc a-Rosario as the ____________________ 3 Rivera-Puig, who has worked for El Vocero since 1979, made __________ several prior similar requests. The local courts steadfastly denied him admission to preliminary hearings pursuant to Rule 23(c). Puerto Rican preliminary hearings generally are not recorded. There is thus no opportunity for post-hearing access to these proceedings. It should be noted that in fiscal years 1987-1988, 28,796 preliminary hearings were held in the courts of Puerto Rico. Rivera-Puig, 785 F. Supp. at 282. ___________ -6- defendant, the plaintiff also served the complaint on the Secretary of Justice of the Commonwealth and the Director of the Courts Administration of Puerto Rico. In a motion filed with the complaint, Rivera-Puig claimed that two preliminary hearings would soon take place involving charges against prominent public officials,4 but that the identity of the presiding judges was unknown until the day of the hearings. Thus, it was difficult to challenge the closure of hearings beforehand. Because he wanted access to these hearings, Rivera-Puig sought an expedited hearing to decide the validity of the closure provisions of Rule 23. The hearing was held on January 23, 1992. In addition to the facts previously stated, the district court heard the testimony of Manny Su rez, a reporter for the San Juan English language daily, The San Juan Star. Su rez testified that on ___________________ January 22, 1992 he was denied access to a review of a preliminary hearing determination held in the San Juan part of the Superior Court of Puerto Rico pursuant to Rule 24(c) of the Puerto Rico Rules of Criminal Procedure.5 ____________________ 4 A preliminary hearing had been scheduled for February 3, 1992 regarding criminal charges against the Speaker of the House of Representatives of Puerto Rico's Legislature. Similar proceedings were scheduled for January 30, 1992, and March 17, 1992 involving criminal charges against an Assistant Superintendent of Police. Both cases were highly charged with public interest throughout Puerto Rico. 5 Rule 24 governs a proceeding which may be held after a preliminary hearing. Subdivision (c) allows the prosecuting attorney to resubmit the case, using the same or different evidence, to a judge in the superior court if the judge in the Rule 23 preliminary hearing found no probable cause or found probable cause for a lesser offense than the one charged. See ___ Pueblo v. Cruz-Justiniano, 116 P.R. Dec. 28 (Official ______ _______________ -7- The district court also learned of three local court actions involving the validity of Rule 23(c). In the first of these suits, El Vocero de Puerto Rico v. Estado Libre Asociado de ________________________ ________________________ Puerto Rico, Civil Appeal AC-90-191, (the "El Vocero appeal"), ___________ __________ the superior court decided in favor of the rule's constitutionality on January 29, 1990. An appeal went to the Supreme Court of Puerto Rico where it was pending resolution since February 1, 1991. Appellants twice moved that court for expedited resolution and sought mandamus against the seven justices of the Supreme Court of Puerto Rico, moving for decision of the submitted appeal. The court rejected these efforts in a cryptic ruling dated January 22, 1992.6 The second suit involving Rule 23(c) was Pueblo de __________ Puerto Rico v. Lara-Imbert, CE-91-235 (June 28, 1991), in which ___________ ___________ the Supreme Court of Puerto Rico reversed a superior court ruling which, relying on Press-Enterprise II, refused closure of the ___________________ preliminary hearing. That decision, however, was based on a perceived lack of a "case and controversy," not on the merits. A third case, El Vocero de Puerto Rico v. Hon. Carlos _________________________ ___________ Cab n-Garc a, 92 J.T.S. 1 at 9121 (1992), was dismissed by the ____________ ____________________ Translations at 35) (1984); Alvarez v. Tribunal Superior, 102 _______ __________________ P.R. Dec. 236 (Off. Trans. at 296) (1974). Procedures under Rule 24 are not considered appeals from the judge's ruling but rather are independent hearings. Cruz-Justiniano, 116 P.R. Dec. at 30 _______________ (Off. Trans. at 38). See also Rivera-Puig, 785 F. Supp. at 281 ________ ___________ n.5. 6 The court concluded that it lacked jurisdiction to issue a writ of mandamus against itself and that the appeal was receiving the priority merited by the important nature of the controversy in question. -8- Supreme Court of Puerto Rico for lack of jurisdiction. In a comprehensive and well-founded opinion, the federal district court decided the present case on January 31, 1992. The district court ruled that: (1) the doctrine of "judicial immunity did not bar the issuance of prospective injunctive relief against a judicial officer acting in [his] judicial capacity," (quoting Pulliam v. Allen, 466 U.S. 522, 541- _______ _____ 42 (1984)); (2) an Article III "case and controversy" existed between Rivera-Puig, who was denied access to the preliminary hearings, and Judge Garc a-Rosario who enforced the closure provisions of Rule 23; (3) abstention under Younger v. Harris, _______ ______ 401 U.S. 37 (1971), was inappropriate because plaintiff did not seek an injunction of any criminal proceeding, but rather was requesting access to future preliminary hearings; (4) abstention pursuant to Colorado River Water Conservation District v. United ___________________________________________ ______ States ("Colorado River"), 424 U.S. 800 (1976), was inappropriate ______ ______________ because the "exceptional circumstances" alluded to in that case were not present in this one; and on the merits (5) the closure provision of Rule 23(c) fell squarely within the prohibition of Press Enterprise II. Notwithstanding this ruling, the district ____________________ court refused to issue an injunction because it was "sure that the Puerto Rico judiciary [would] comply with this declaration without [the need for] further compulsion." Rivera-Puig, 785 F. ___________ Supp. at 290. On February 12, 1992, Rivera-Puig was again refused entry to several preliminary hearings despite the local judges' -9- knowledge of the district court's ruling. Thus, he filed a motion with the district court renewing his request for injunctive relief.7 The district court judge again concluded that "Rule 23(c)'s closure provision flagrantly and patently violate[d] express constitutional precedent by the Supreme Court of the United States," and that this violation was causing "[g]reat and immediate irreparable first amendment injury." Id. ___ at 292. Yet, he again refused to issue the injunction, expressing pious hope that the "Puerto Rico judiciary, a traditionally responsible institution," would comply with the decision without the need for "the strong remedy of injunction." Id. at 292-93. ___ Defendant and the intervenor, the Department of Justice of the Commonwealth,8 appealed, raising three issues: (1) whether the district court lacked Article III jurisdiction in that defendant-appellant has no interest adverse to that of Rivera-Puig; (2) whether the district court should have abstained from hearing the case pursuant to Younger, 401 U.S. 37, Colorado _______ ________ River, 424 U.S. 800, or Railroad Commission of Texas v. Pullman _____ ____________________________ _______ ____________________ 7 The motion was accompanied by a sworn statement setting out the facts previously described as well as a newspaper account which appeared in the February 12, 1992 San Juan Star quoting the _____________ Chief Justice of the Supreme Court of Puerto Rico as stating that "[e]ach individual judge is free to follow the [federal court] decision, which is persuasive, but is not binding." Robert Friedman, Andreu: Hearings Ruling Not Binding, San Juan Star, ______________________________________ ______________ February 12, 1992, at 6. 8 We found nothing in the record that granted the Department of Justice intervenor status. However, they have acted as intervenors throughout the case, and we will treat them as such. -10- Co. ("Pullman"), 312 U.S. 496 (1941); and (3) whether Rule 23(c) ___ _______ runs contrary to Press Enterprise II. ___________________ Before discussing these issues we will recount the most recent development in this convoluted case. -11- IV. THE EL VOCERO APPEAL IV. THE EL VOCERO APPEAL ____________________ On July 8, 1992, the Supreme Court of Puerto Rico decided the El Vocero appeal. El Vocero de Puerto Rico, et al. __________ _________________________________ v. Estado Libre Asociado de Puerto Rico, 92 J.T.S. 108 (July 8, _____________________________________ 1992).9 The court found that the preliminary hearing promulgated by Rule 23 differed from the California one found to be invalid by Press Enterprise II, and ruled it constitutional. ____________________ It is crystal clear that we lack appellate or non-habeas corpus jurisdiction over decisions of the courts of any state, including the Commonwealth of Puerto Rico. See District of Columbia Court ___ __________________________ of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity ___________ _______ ______ ________ Trust Co., 263 U.S. 413 (1923). However, the El Vocero appeal is _________ _________ at the heart of many of appellants' arguments. We thus discuss this ruling, not in an appellate or supervisory posture, but to garner the Puerto Rico Supreme Court's definitive position on Rule 23(c) procedure and to determine how that position affects the federal proceedings. The case concerns the same issue as the present one: the constitutionality of Rule 23(c); however, the El Vocero and _________ another reporter brought the case. The Puerto Rico Supreme Court, by a 4 to 3 vote, concluded that criminal defendants' right to privacy ("derecho a la intimidad") and to a fair and impartial trial override any right of access by the public or press in the Rule 23(c) ____________________ 9 This is the Spanish language citation as the decisions are no longer routinely translated to English. -12- preliminary hearing. A large part of the majority opinion is a historical and philosophical discourse regarding the Puerto Rican legal system during the Spanish regime as it relates to Press- ______ Enterprise II and California's preliminary hearing. According to _____________ the court, California's preliminary hearing had been open to the public since its inception in 1872. However, the court found this not to be the case in Puerto Rico. See El Vocero, 92 J.T.S. ___ _________ at 9832-42. According to the court, shortly after the change in sovereignty in 1898, Puerto Rico adopted California's Criminal Procedure Code except for those provisions dealing with preliminary hearings. Id. at 9842 (citation omitted). It was ___ not until 1964 that "'fundamentally inspired' by the federal ______________________ rule," Rule 23 was adopted. Id. at 9842. The court then engaged ___ in a comparative analysis of the Puerto Rican and Californian preliminary hearings, concluding that the local one, contrary to the one in California, "is a limited procedure, investigative- judicial in nature, which does not resemble a trial sufficiently to have Press-Enterprise II apply." Id. at 9846. ___________________ ___ Interestingly enough, however, the court opinion then applied the Press-Enterprise II experience and logic tests, id. ___________________ ___ at 9847, an analysis which would seem appropriate before rather than after reaching a conclusion under that case. Balancing the right to privacy in the Puerto Rico Constitution,10 and the right to a fair trial, against the right of access by the press ____________________ 10 See P.R. Const., art. II, 8. ___ -13- and public to the preliminary hearing, the Puerto Rican court reiterated the validity of the closure provision of Rule 23(c). Id. at 9847-52. ___ V. LEGAL ANALYSIS OF THE PRESENT APPEAL V. LEGAL ANALYSIS OF THE PRESENT APPEAL ____________________________________ A. ARTICLE III JURISDICTION A. ARTICLE III JURISDICTION On appeal, appellants argue that "the district court lacked jurisdiction to entertain the complaint filed against defendant-appellant in his official capacity because the parties have no adverse legal interest for Article III purposes or no actual controversy within the meaning of the Declaratory Judgment Act is present." Appellants' Brief at p. 11. Appellants never raised this issue before the district court. Their original Article III "case or controversy" argument asserted only that Rivera-Puig had not personally suffered any actual or threatened injury.11 Because jurisdictional issues can be raised at any stage of a federal case, Morrison v. Olson, 487 U.S. 654, 669-70 ________ _____ (1988), we address this new argument even though we consider it disingenuous. In every recent major Supreme Court case involving challenges to court rules, the enforcing court was a party defendant. See Press-Enterprise II, 478 U.S. 1 (1986) (Superior ___ ___________________ Court of California); Press-Enterprise I, 464 U.S. 501 (1984) __________________ (Superior Court of California); Pulliam v. Allen, 466 U.S. 522 _______ _____ ____________________ 11 We note that appellants' original claim lacks merit. The district court correctly found that Rivera-Puig suffered actual or threatened injury in that he was prevented from exercising his qualified First Amendment right of access. -14- (1984) (Magistrate for the County of Culpeper, Virginia); Globe _____ Newspaper Co. v. Superior Court for County of Norfolk, 457 U.S. _____________ _____________________________________ 596 (1982) (Superior Court of Norfolk County, Massachusetts). In fact, in appellants' Motion to Dismiss before the district court, among the grounds urged as a basis for that relief was plaintiff's alleged failure to join as indispensable parties "the superior courts which are entertaining the criminal actions." See Motion to Dismiss, at 1-2. ___ Moreover, Judge Garc a-Rosario, as the enforcer of the ________ Rule 23(c) closure provisions, has an interest adverse to those seeking access to preliminary hearings conducted before him. See ___ Pulliam v. Allen, 466 U.S. 522 (1984) ( 1983 action against _______ _____ county magistrate to prevent prospective enforcement of her ___________ practice of incarcerating persons waiting trial for nonincarcerable offenses was proper); Supreme Court of Virginia __________________________ v. Consumers Union of United States, Inc., 446 U.S. 719, 736 ________________________________________ (1980) (Virginia Supreme Court and its chief justice, in his individual and official capacity, were proper defendants in a 1983 action for declaratory and injunctive relief against enforcement of court-promoted rules). ___________ Appellants characterize Judge Garc a-Rosario's actions with respect to the closure provisions of Rule 23(c) as those of "a neutral adjudicator." By this allegation appellants seek to invoke In re Justices of the Supreme Court of Puerto Rico ("In re __________________________________________________ _____ Justices"), 695 F.2d 17, 21 (1st Cir. 1982), in which we held ________ that "ordinarily, no 'case or controversy' exists between a judge -15- who adjudicates claims under a statute and a litigant who attacks the constitutionality of that statute." In that case, however, both adjudicative and enforcement functions of the Puerto Rico justices were at issue. In re Justices prohibits a suit against ______________ Judge Garc a-Rosario for any actions related to his adjudicatory functions. However, it also ruled that, if judges possess administrative responsibilities, they are proper parties for "case or controversy" purposes on those issues. Id. at 27; see ___ ___ also Consumers Union, 446 U.S. at 734-37 (judges can be sued for ____ _______________ declaratory and injunctive relief in connection with their enforcement of court rules). Judge Garc a-Rosario is an adjudicator with respect to criminal defendants that come before him in Rule 23 hearings. With respect to members of the public seeking access to those hearings, however, he is an enforcer or "administrator." Thus, Judge Garc a-Rosario is a proper party in this case under In re _____ Justices. ________ Moreover, there are two appellant parties in the ___ present case, Judge Garc a-Rosario and the commonwealth's chief ___ enforcement officer, the Secretary of Justice, who has assumed intervenor status. See "Notice of Appeal," "Amended Notice of ___ Appeal," and "Motion in Opposition to Urgent Motion under FRCP Rule 52(b) Requesting Injunctive Relief and Hearing Thereof." Thus, the district court had Article III jurisdiction even if Judge Garc a-Rivera was an improper party under In re Justices. ______________ We thus come to neuralgic issues involving principles -16- of federalism and comity that wander through the El Vocero appeal _________ like meteors lost in space, and which we must solve before we are free to consider more mundane questions. B. ABSTENTION AND RELATED MATTERS12 B. ABSTENTION AND RELATED MATTERS Appellants argue that the district court should have abstained from hearing the case because the El Vocero case was __________ pending in the Puerto Rico courts. Appellants offer three principle cases in support of that argument: Younger, 401 U.S. _______ 37, Colorado River, 424 U.S. 800, and Pullman, 312 U.S. 496. ______________ _______ 1. Younger Abstention. 1. Younger Abstention. _______ Younger, 401 U.S. at 43-54, counsels against federal _______ court injunctions of state criminal proceedings pending against the federal plaintiff, absent special circumstances. Huffman v. _______ Pursue, Ltd., 420 U.S. 592, 604 (1975), extended this principle ____________ ____________________ 12 Res judicata, estoppel, and similar matters are not at issue. At oral argument, appellants specifically disclaimed these defenses. That is just as well, as they are affirmative defenses that are waived unless raised in the answer. See Fed. R. Civ. P. ___ 8(c); Badway v. United States, 367 F.2d 22, 25 (1st Cir. 1966). ______ _____________ Appellants failed to raise these defenses in their answer. Moreover, even if appellants had properly raised these defenses, it is doubtful that they would have been available in this case. Federal courts must look to state law to see what effect will be given to state court judgments. Allen v. McCurry, _____ _______ 449 U.S. 90, 96 (1980); Schneider v. Colegio de Abogados de _________ _______________________ Puerto Rico, 546 F. Supp. 1251, 1269 (D.P.R., 1982). Puerto Rico ___________ requires the parties in each case to be identical for these defenses to apply. P.R. Laws Ann. tit. 21, 3343 (1991). Neither plaintiff nor defendant in the present case are parties in the El Vocero case. That action is not a class action, and _________ the interests of a newspaper are not necessarily the same of those of a reporter. Thus, the required "perfect identity of parties" does not exist in this case. See In re Justices, 695 ___ _______________ F.2d at 26 (where some plaintiffs in federal suit did not participate in previous state suit, claims in federal suit not barred by res judicata or collateral estoppel). -17- to state civil enforcement cases pending against the federal plaintiff. The Supreme Court further extended the doctrine to civil proceedings pending against the federal plaintiff which: (1) are judicial in nature; (2) concern an important state interest; and (3) afford the federal plaintiff an opportunity to raise federal defenses.13 Middlesex Ethics Comm. v. Garden ________________________ ______ State Bar Ass'n., 457 U.S. 423, 432 (1981). Finally, the Supreme ________________ Court held that the doctrine includes state criminal cases pending against individuals who have interests that are intertwined with the federal plaintiff's interests. Hicks v. _____ Miranda, 422 U.S. 332, 348 (1974). Collectively, these cases _______ establish the Younger abstention doctrine. _______ The Younger abstention doctrine does not permit _______ abstention in the present case because the district court's ruling did not enjoin or interfere with any state proceeding pending against Rivera-Puig or anyone whose interests are intertwined with his. The criminal cases that Rivera-Puig wishes to attend are future preliminary hearings of third-person criminal defendants. Cf. Bettencourt v. Board. of Registration ___ ___________ ______________________ in Medicine, 904 F.2d 772 (1st Cir. 1990). These defendants have ___________ no relation whatsoever to Rivera-Puig. Similarly, the El Vocero case was not pending against _________ _______________ ____________________ 13 Because the El Vocero proceeding is not a criminal or civil _________ enforcement case, and it is not "uniquely in the furtherance of the state courts' ability to perform their judicial functions," New Orleans Pub. Serv., Inc. v. New Orleans, 491 U.S. 350, 368 ______________________________ ___________ (1988), we doubt that the present case implicates the type of important state interest contemplated in Middlesex Ethics Comm.. _______________________ However, we need not reach that issue today. -18- Rivera-Puig or someone whose interests were intertwined with his. ___________ Appellants point out that Rivera-Puig's employer, who brought the El Vocero case, had similar interests as Rivera-Puig. See Hicks, _________ ___ _____ 422 U.S. at 348-50 (theater employees being prosecuted in state court had intertwining interests with theater which filed suit in federal court to enjoin proceedings against them). However, the proceedings in El Vocero were not pending against El Vocero. _________ __________________________ Kercad -Mel ndez v. Aponte-Roque, 829 F.2d 255, 259 (1st Cir. ________________ ____________ 1989). "In the paradigm situation calling for Younger restraint, _______ the state defendant brings a federal action challenging the statute [which is simultaneously being applied against him]." Fern ndez v. Tr as Monge, 586 F.2d 848, 851 (1978); see, e.g., _________ ___________ ___ ____ Penzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (federal plaintiff ___________ ____________ seeking to enjoin state plaintiff from enforcing judgment against him); Moore v. Sims, 442 U.S. 415 (1979) (federal plaintiffs _____ ____ seeking to enjoin state proceedings against them for child abuse); United Books, Inc. v. Conte, 739 F.2d 30 (1984) (federal __________________ _____ plaintiff seeking to enjoin future prosecutions against it). In the present case, El Vocero brought the state court lawsuit to _______ determine the constitutionality of Rule 23. The state court in El Vocero was not applying Rule 23 against Rivera-Puig. Thus, __________ even if its interests were intertwined with Rivera-Puig's, the present situation is not the type contemplated by the Younger _______ abstention doctrine. The best that can be said in appellants' favor is that a parallel state suit, involving parties with similar interests, -19- has been decided in a manner adverse to Rivera-Puig's claims in the federal action. To find that the district court in the present case should have abstained because of the El Vocero case _________ would make abstention the rule rather than the exception. Iowa ____ Mut. Ins. v. LaPlante, 480 U.S. 9, 22 (1987) (Stevens, J., __________ ________ concurring in part and dissenting in part) ("The mere fact that a case involving the same issue is pending in another court has never been considered sufficient reason to excuse a federal court from performing its duty 'to adjudicate a controversy properly before it.'") (citation omitted); County of Allegheny v. Frank ___________________ _____ Mashuda Co., 360 U.S. 185, 188 (1959); McClellan v. Carland, 217 ____________ _________ _______ U.S. 268, 282 (1910) ("pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction"). The "mere potential for conflict in the results of adjudication does not, without more, warrant staying exercise of federal jurisdiction." Colorado ________ River, 424 U.S. at 816-17 (citing England v. Medical Examiners, _____ _______ _________________ 375 U.S. 411, 415 (1964)). Last, but not least, there are extraordinary reasons present in this case which militate against our restraining federal court action. First, we believe that Rivera-Puig had a clear First Amendment right which is being flagrantly violated by the commonwealth authorities. See Playboy Enter. v. Public Serv. ___ ______________ ____________ Comm'n, 906 F.2d 25, 31 (1st Cir. 1990) (there is a "willingness ______ of federal courts, including the Supreme Court, to entertain declaratory and injunctive actions against prospective -20- enforcement of state laws which threaten to discourage expression"). Second, the nature of the matters being decided in the preliminary hearings in the commonwealth courts to which Rivera-Puig sought access were not only highly charged with public interest, but were also unique and non-recurring. Thus, time was of the essence in determining Rivera-Puig's constitutional rights. Third, the matters had been pending before the commonwealth courts for an inordinate length of time, for no reason apparent from the record. These factors additionally counsel against Younger abstention in this case. _______ 2. Colorado RIVER Abstention. 2. Colorado RIVER Abstention. ______________ Under Colorado River, 424 U.S. at 813 (citing County of ______________ _________ Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89 (1959)), a _________ __________________ federal court may ordinarily abstain under exceptional circumstances. Because a "federal court's duty to exercise jurisdiction is relaxed in the declaratory judgment context," Fuller Co. v. Ram n I. Gil, Inc., 782 F.2d 306, 308-09 n.3 (1st __________ ___________________ Cir. 1986), a court may abstain in declaratory judgments under less than exceptional circumstances. Id. ___ Recently, in Burns v. Watler, 931 F.2d 140, 146 (1st _____ ______ Cir. 1991), we identified a number of factors that have emerged as the core of the Colorado River abstention doctrine: ______________ (1) whether either court has assumed jurisdiction over a res; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal law or state law controls; and (6) whether the state forum will -21- adequately protect the interests of the parties. . . . (citations omitted). We also found that we should consider the principles underlying removal jurisdiction and whether the federal litigation is contrived or vexatious.14 Id. ___ This list is not exhaustive, id., and a strict ___ numerical scorecard of these points is not determinative. However, it is helpful in assessing whether abstention is appropriate. In balancing these factors, we conclude that they do not favor abstention. First, there is no res involved. Second, we can perceive no additional inconvenience from litigating in the federal forum as opposed to the commonwealth. Third, there is no piecemeal litigation because each case is self-contained and involves different parties and facts. Fourth, federal law controls the outcome of the underlying issue. Fifth, there is no allegation or evidence that the federal litigation is vexatious or contrived, and this case was not removed from the state courts. Moreover, the sequence in which the forums obtained jurisdiction is irrelevant because this litigation and the El __ Vocero case are not identical. There are different plaintiffs ______ and different defendants, and the El Vocero case is not a class _________ action. Furthermore, although the legal principles are the same, the factual basis giving rise to the present case, and those in ____________________ 14 These factors "run substantially parallel to the criteria that historically have been deemed relevant in determining whether to accept or decline jurisdiction over a [declaratory judgment action]." Fuller Co., 782 F.2d at 308-09 n.3. __________ -22- the El Vocero case, differ. Finally, the right of accessibility _________ espoused by Press-Enterprise II is not limited to the press, but ___________________ also includes the "general public." Press-Enterprise II, 478 ____________________ U.S. at 8. Thus, Rivera-Puig, either in his capacity as a professional reporter, or as part of the "general public," should not be restricted in bringing a federal suit to protect against the violation of his constitutional rights, irrespective of other ___ suits filed by other members of the press or general public. _____ With respect to whether the state forum will adequately protect the interests of the parties, although some of the events reported in this case are disturbing indeed, we refuse, at least as the record now stands, to "rule on the assumption that [commonwealth] judges will not be faithful to their constitutional responsibilities." Huffman v. Pursue, Ltd., 420 _______ ____________ U.S. at 611; see also In re Justices, 695 F.2d at 23, ("[I]t is _________ ______________ ordinarily presumed that judges will comply with a declaration of a statute's unconstitutionality without further compulsion.").15 ____________________ 15 We do not question the power of the commonwealth courts to reach their own conclusions in the separate commonwealth proceedings. Although we do not believe that the Rule 23(c) closure provisions are in any way ambiguous, the El Vocero __________ opinion is helpful because it definitively expresses the views of the highest Commonwealth court regarding its view of the Rule 23 ___ proceedings and of the validity of the closure provisions of Rule 23(c), thus leaving no doubt as to how it will be interpreted in that jurisdiction. Cf. Huffman, 420 U.S. at 616 n.2 ("Abstention ____ ___ _______ [may be] appropriate where authoritative resolution by state courts of ambiguities in a state statute is sufficiently likely to avoid or significantly modify federal questions raised by the statute. . . . Abstention is justified in such cases primarily by the policy of avoidance of premature constitutional adjudication."). -23- In conclusion, the Colorado River factors do not _______________ warrant abstention in the present case. 3. Pullman Abstention. 3. Pullman Abstention. _______ Appellants contend that the district court should have abstained under the doctrine enunciated in Pullman. Appellants _______ have waived this argument by failing to raise it before the district court. E.g., Boston Celtics Ltd. Partnership v. Shaw, ____ _______________________________ ____ 908 F.2d 1041, 1045 (1st Cir. 1990). However, even had appellants properly argued for Pullman abstention below, the _______ argument would fail. Under Pullman, 312 U.S. at 501, federal courts should _______ abstain when state law is uncertain, and a clarification of the law in a pending state court case might make the federal court's constitutional ruling unnecessary. The Pullman doctrine rests on _______ the desirability of having federal courts avoid unnecessary rulings on constitutional issues. Wright, Miller & Cooper, Federal Practice and Procedure, 4241 at 33 (2d ed. 1988). ______________________________ To warrant Pullman abstention: (1) there must be _______ substantial uncertainty over the meaning of the state law at issue; and (2) there must be a reasonable possibility that the state court's clarification of the law will obviate the need for a federal constitutional ruling. Hawaii Housing Authority v. _________________________ Midkiff, 467 U.S. 229, 236-37 (1983). _______ When the federal claim is not entangled with complicated unresolved state law questions, abstention is ____________________ -24- inappropriate. Wisconsin v. Constantineau, 400 U.S. 433, 438 _________ _____________ (1971). Indeed, abstention in cases where state law questions are unambiguous is impermissible because it "would convert abstention from an exception into a general rule." Examining Bd. _____________ of Engineers, Architects & Surveyors v. Flores de Otero, 426 U.S. ____________________________________ _______________ 572, 598 (1976); see also Harris County Comm'rs. Court v. Moore, ________ ____________________________ _____ 420 U.S. 77, 84-85 (1975). A federal court should not abstain simply to give a state court the first opportunity |