
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________          No. 96-1285                         CARLOS J. NIEVES-VILLANUEVA, et al.,                               Plaintiffs, Appellants,                                          v.                      JOSE R. SOTO-RIVERA, Individually and as                    Mayor of the Municipality of Canovanas, et al.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Stahl, Circuit Judge,                                       _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________               Carlos A. del Valle Cruz for appellants.               ________________________               Miguel  Pagan, with  whom Pagan  & Pagan  was on  brief, for               _____________             ______________          appellees.                                 ____________________                                  December 22, 1997                                 ____________________                      LYNCH,  Circuit Judge.    Plaintiffs are  fifty-one                      LYNCH,  Circuit Judge.                              _____________            former  "transitory"   or  non-permanent  employees   of  the            municipality of Canovanas, Puerto Rico.  A jury found against            their  claims that the  incoming New Progressive  Party (NPP)            administration  failed to renew their contracts of employment            in various municipal jobs because they were supporters of the            prior Popular  Democratic Party  (PDP) administration  and so            violated their rights under the First Amendment.1                      The  important  question  raised  by this  case  is            whether the district  court committed error in  admitting the            testimony of an expert witness.   The witness testified as to            what the law required and that her examination of plaintiffs'            personnel records led  to the conclusion that  plaintiffs had            been   improperly  hired  or  renewed  in  the  first  place.            Defendants did not testify this  was their reason at the time            of  their  decision  not  to   renew  plaintiffs'  contracts.            Although   such  expert  testimony   should  not   have  been            permitted,  we  consider any  alleged error  in light  of the                                            ____________________            1.  This  court has  reviewed  numerous  claims of  political            firings or demotions from Puerto  Rico.  In November of 1984,            the  PDP won  the  gubernatorial  election  in  Puerto  Rico.            Before that,  the governor's office  was held by a  member of            the NPP.  A first wave of cases involved outright dismissals;            the second wave  involved adverse actions less  than outright            dismissals.   That history is  recited in Agosto-de-Feliciano                                                      ___________________            v. Aponte-Roque,  889 F.2d  1209 (1st Cir.  1989).   In 1992,               ____________            control   of  the  governor's   office  and  of   some  local            governments switched, and  the NPP came back to  power.  Now,            this  court  is faced  with  another wave  of  litigation (we            hesitate to count  which wave this is), brought  this time by            PDP members.                                         -2-                                          2            evidence as a whole, and particularly in light of the judge's            instructions to the jury.  In the circumstances of this case,            we consider  the alleged errors harmless and  affirm the jury            verdicts.                                          I.                                          I                      Plaintiffs  sued,  inter alios,2  Jose  Soto-Rivera            ("Soto") and the Municipality of Canovanas under  42 U.S.C.              1983, alleging  that they  had been  dismissed  due to  their            political  beliefs  and  in violation  of  their  due process            rights.    The  complaint  sought  reinstatement,  injunctive            relief,  compensatory and  punitive  damages, and  attorney's            fees.                      On  defendants' motion  for  summary judgment,  the            district court  dismissed  plaintiffs'  due  process  claims,            noting  that, under First  Circuit precedent and  Puerto Rico            law,  transitory employees generally  do not have  a property            interest in continued employment beyond their yearly terms of            appointment.  See Caro v.  Aponte-Roque, 878 F.2d 1, 4-5 (1st                          ___ ____     ____________            Cir.  1989); see  also Mel ndez  v.  Municipio de  Arroyo, 96                         _________ ________      ____________________            J.T.S. Case No. 68, at p.  1077 (P.R. Sup. Ct. May 15,  1996)            (reaffirming that, as a matter of Puerto Rico law, transitory            employees  generally have  no "legitimate  expectation" to  a                                            ____________________            2.  The district  court dismissed plaintiffs'  claims against            the other municipal defendants prior to trial.                                         -3-                                          3            renewal  of   their  contracts);  Departamento   de  Recursos                                              ___________________________            Naturales v. Correa, 118 D.P.R. 689, 697 (1987) (same).3            _________    ______                      Before trial,  defendants retained  Blanca Santiago            as an expert in governmental personnel matters to examine the            plaintiffs' personnel  records.  Santiago's  report concluded            that  plaintiffs' initial  appointments and,  in  some cases,            renewal appointments  were contrary to Puerto  Rico municipal            law,  and that  the previous  administration  had employed  a            "subterfuge"  to  renew the  plaintiffs' appointments  and to            evade  a prohibition on making personnel decisions within two            months of  a general election.   The report also  opined that            plaintiffs  did  not   have  "a  legitimate   expectation  of            retaining employment."  Finally,  the report concluded  that,            under the law of Puerto Rico, "the Municipality  of Canovanas            could not continue extending said transitory appointments."                      Upon receiving Santiago's report, plaintiffs made a            motion   in   limine   to   exclude   Santiago's   testimony.            Plaintiffs' principal objection was that the expert witness's            opinion concerning the  propriety of plaintiffs' appointments                                            ____________________            3.  Defendants also moved  for summary judgment on the claims            for  damages on  qualified immunity grounds.     The district            court  denied defendants'  motion,  holding  that before  the            events in  1993, the  First Circuit  had clearly  established            that First  Amendment protection  extended to  political non-            renewals of employment.  See  Caro, 878 F.2d at 2-4; Figueroa                                     ___  ____                   ________            v.  Aponte-Roque, 864  F.2d 947,  951 (1st  Cir. 1989).   The                ____________            district  court determined that there existed a genuine issue            of material fact concerning defendants' motives  in declining            to renew plaintiffs' transitory appointments.                                           -4-                                          4            was not relevant  to liability.  Defendants did  not maintain            that  Soto  did  not renew  plaintiffs'  appointments  due to            irregularities  in how  they were  appointed.   The  district            court denied plaintiffs' motion.                                         II.                                         II                      We state  the facts  as the  jury could have  found            them,  in  the context  of  the  evidence  as a  whole,  with            particular  emphasis on  the evidence  allegedly admitted  in            error.                      Plaintiffs said they were affiliated with  the PDP,            one of Puerto Rico's major  political parties.  In 1992, Soto            was elected Mayor  of Canovanas as the candidate  of the NPP,            the main rival of the PDP.  Soto was the first  NPP candidate            elected as Mayor of Canovanas in several decades.                      Plaintiffs  had been  appointed  by  the prior  PDP            mayor, Esteban Melendez-Rivera, to various  municipal jobs as            transitory  employees.  Those  jobs included manual  labor in            the  Public Works  Department,  janitorial work  in municipal            offices,  clerical  work,  and other  lower  level  jobs with            minimal   salaries.      Under   Puerto   Rico's   Autonomous            Municipalities Act, 21 L.P.R.A.    4554, transitory employees            may be appointed for a  limited term, generally not to exceed            one year.   Although plaintiffs, unlike other  civil servants            in Puerto Rico, had no  formal tenure in their jobs following            the  expiration of their contracts, many had been reappointed                                         -5-                                          5            for  several one-year  terms as  a matter  of course.   Other            plaintiffs were in their first annual term of employment.                      On January 15, 1993, three days after taking office            as Mayor of  Canovanas, Soto informed most  of the plaintiffs            that  their positions as transitory employees had expired and            that he would  not renew their  appointments.  The  remaining            plaintiffs'  appointments  were   temporarily  extended,  but            eventually their appointments expired as well.                      Plaintiffs  testified  that   they  campaigned  for            Esteban   Melendez-Rivera,  the PDP  candidate,  in the  1992            mayoral election.  Plaintiffs testified that they had engaged            in  various PDP political  activities on behalf  of Melendez,            including  attending political meetings or taking part in the            campaign  rallies known  as caravanas  ("caravans") that  are                                        _________            typical of mayoral campaigning in  Puerto Rico.  Many of them            testified that Soto  solicited their support, and,  when they            said they would support the incumbent PDP mayor instead, Soto            threatened  to  leave  them  without  employment  after   the            election.  Many plaintiffs also testified that they observed,            after their non-renewals, NPP  members performing the  duties            of the jobs they had performed as transitory employees.                      In  support   of  their  First   Amendment  claims,            plaintiffs  put  in evidence  their personnel  files, arguing            that  there  was nothing  in  them that  would  indicate poor            performance.   Plaintiffs also presented an expert witness in                                         -6-                                          6            personnel administration to bolster their claims of political            discrimination.4                      Defendants'  position   was  that   Soto  had   not            considered plaintiffs' political  affiliation in his decision            to allow  their contracts to  expire.   They presented  three            witnesses:  Mayor  Soto,  Vice-Mayor  Miguel  Jimenez-Carrion            ("Jimenez"),  and Blanca  Santiago, their  expert witness  on            government  personnel  administration.    Soto  categorically            denied  the  plaintiffs' allegations  that he  had threatened            their jobs if they supported the incumbent.  He noted that he            had  retained or  hired PDP  members to  municipal jobs.   He            testified that he had allowed plaintiffs' contracts to expire            because their services  were no longer needed.   Jimenez gave            essentially  the same version  of events.   Neither testified            that they had  not renewed the contracts  because plaintiffs'            appointments had been irregular.            Defendants' Expert            __________________                      Defendants'   expert   witness,   Blanca  Santiago,            testified that the plaintiffs' personnel records demonstrated            that,  in many  cases, their  appointments  were contrary  to            Puerto Rico law.  In particular, Santiago testified that many            employees  had been  on the  payroll in  excess of  one year,                                            ____________________            4.   The  plaintiffs did  not  order the  transcript of  that            portion of  the trial  that included  their expert  witness's            testimony.   That omission  complicates our  analysis, as  we            explain below.                                         -7-                                          7            sometimes  without any  documented reappointment,  and opined            that this violated  the Autonomous Municipalities Act,  which            provides  that  the  appointment  of "[t]ransitory  employees            shall not  exceed  one  (1) year  . . .  ."   21  L.P.R.A.               4554(c).  Santiago also testified that many of the plaintiffs            had  been illegally appointed within  two months of a general            election,  in  violation  of a  prophylactic  prohibition  on            government  personnel   decisions  commonly   known  as   the            "electoral ban."  See 21 L.P.R.A.   4564; 3 L.P.R.A.    1337.                              ___            Santiago testified further that, in some cases, the personnel            records had been manipulated in  order to make it appear that            plaintiffs'  appointments were  not within the  electoral ban            period.                      Defense counsel then questioned Santiago to  elicit            testimony to the effect that courts have held that transitory            employees  do  not have  a  right  to  the renewal  of  their            contracts.   Defense counsel  accomplished this  objective by            reading passages from court decisions holding that transitory            employees in  Puerto Rico  have no  reasonable or  legitimate            expectation  of  continued  renewal of  their  contracts that            would entitle them to  administrative due process protections            before  allowing their contracts  to expire, and  then asking            Santiago to comment.  This  was done although the due process            claims had been dismissed.                                         -8-                                          8                      Santiago  testified  that, under  court  decisions,            "[o]nce  [a  transitory  employee's]  appointment  ends   the            transitory employee . . . doesn't have any . . . other right,            regardless of the fact that his appointment has been extended            for a  period of time  that we may call  'excessively long.'"            Plaintiffs'  counsel objected to this testimony on the ground            that it misstated the law.  That objection was overruled.                      Soon   afterwards,   defense    counsel   continued            questioning  Santiago  on  the  legal  status  of  transitory            employees:                      Q. I am going to review . . . the case of                      Fermin  Orta  et   al.  versus  Pedro  A.                      _________________________________________                      Padilla, Municipality of  Trujillio Alto,                      _________________________________________                      et al. .  . . .  I'm going to read to you                      ______                      from  the  translation  of  that  opinion                      . . . .            At this  point, plaintiffs  again objected,  noting that  the            case   concerned  the   due  process  rights   of  transitory            employees, and  that the  sole claim on  trial was  the First            Amendment  claim.    Again,   the  district  court  overruled            plaintiffs' objection.   Defendants  resumed questioning  the            witness about the  law articulated in that case.5  Plaintiffs                                            ____________________            5.   Defense  Counsel:   "[I]t  says, the  opinion:   After a            careful examination of the service and  appointment contracts            of  these 23  appellees,  we  find  that  the  only  contract            terminated before the expiration date was that of Juana Cruz.            The other 22 employees were notified that the contracts would            be terminated at the expiration  date of the same.  In  light            of  the  prevailing  principles, we  must  conclude  that the            termination  of the contract of those 22 transitory employees            was valid  at law  because the municipality  did not  have to            provide them with the  regulatory guarantees mentioned above.                                         -9-                                          9            objected  again,  noting,  "She's testifying  [to]  what  are            basically jury  instructions." The  district court  initially            sustained plaintiffs' objection,  but then permitted  defense            counsel to continue  questioning the witness in  this manner.            Defense counsel proceeded  to read excerpts from  the Supreme            Court  of Puerto  Rico's decision  in Correa,  and  from this                                                  ______            court's decision in  Cheveras-Pacheco v. Rivera-Gonzalez, 809                                 ________________    _______________            F.2d  125, 129  (1st  Cir.  1987)  (holding  that  transitory            employees  do not  have  a  property  interest  in  continued            employment).   Plaintiffs'  counsel again  protested,  and  a            conference  was  held  outside  the  presence  of  the  jury.            Plaintiffs'  counsel  asked the  judge  to strike  Santiago's            testimony or  give a curative instruction, stating explicitly            that it is against the law for a  municipal government to let            a transitory employee's contract expire if the primary reason            is  the employee's political affiliation.  The district court            refused, saying plaintiffs had opened the door with their own                                            ____________________            The trial  court erred  in  ruling that  the termination  was            unlawful."                Santiago:  "The interesting thing about that case is that            there  were --  there  were  22  transitory  employees  whose            appointments  were to  end,  and there  was another  group of            employees  in  which  --  in  which  case  the  decision  was            different,  and the  matter of  discrimination  was approved.            But in the case of the transitory ones their appointments had            ended."                                         -10-                                          10            expert  witness and that they could cross-examine Santiago on            the illegality of firing employees for political reasons.6                      On  cross-examination,  Santiago  stated  that  the            legal opinions she provided on direct examination  concerning            the  status   of  transitory   employees   and  the   alleged            illegalities in plaintiffs' original  appointments were based            solely on Commonwealth law, not federal law.  When questioned            about  the case  law  of this  court which  has  held that  a            decision  not to renew  a transitory employees'  contract may            not be  primarily based  on political  affiliation under  the            First  Amendment,  the  witness was  evasive.    Although she            agreed  that transitory employees could not be discharged for            political reasons, she insisted that  this did not apply when                                            ____________________            6.  The  Court:  "Counsel, the  problem with you is  that you            don't   make  a  distinction  between  the  --  the  witness'            credibility  and  what  is  admissible.    She --  Mr.  Pagan            [defense  counsel]  read  to her  certain  passages  of cases            saying  that -- concerning transitory employees.  I'm certain            you're  going  to  read  her a  part  saying  if  you  take a            transitory employee  and discharge him for  political reasons            it's illegal, and she has to  agree with that.  See?   That's            the way you neutralize that.  I'm not going to teach  you how            to practice  law."   (At oral  argument, plaintiff's  counsel            argued that this last sentence  was particularly prejudicial.            However, as this admonition did  not occur in the presence of            the jury, we examine only  the impact of the district court's            ruling itself.)                   The judge continued,  "[T]he Orta case was  brought [in]                                              ____            by  your  [expert]  witness, and  that  opened  the door  for            [defense counsel] to bring [in] the Orta case. . . . Once you                                                ____            open  the door then you can't complain. . . . I will instruct            the jury on  the law  at the  proper time, and  they have  to            follow the law as I tell them, not as what counsel tells them            the law is."                                         -11-                                          11            a  contract expired because,  she said, such  an employee was            not discharged.            Closing Arguments            _________________                      In  closing arguments,  plaintiffs' counsel  argued            that the  witnesses' testimony, principally  the plaintiffs',            established that the incoming NPP administration's motive for            refusing  to renew  plaintiffs'  contracts  was reprisal  for            their  support of  the previous  PDP mayor.   Defense counsel            strongly contested  the plaintiffs'  credibility, and  argued            that Soto never  considered plaintiffs' political affiliation            in his decision not to renew plaintiffs' contracts.                      Defense counsel also  made reference to  Santiago's            testimony,  arguing that  the employees  were  transitory and            that their appointments had been in violation of  Puerto Rico            municipal law.    Defense counsel also argued  that the Mayor            would have  been in violation of  that law if he  had renewed            their  appointments.    Defense  counsel  made  reference  to            Santiago's  testimony that transitory employees do not have a            reasonable  expectation of  retaining their jobs  after their            contracts  expire,   arguing  that  plaintiffs'   expert  had            distorted the law  in suggesting otherwise.   Defense counsel            asked  rhetorically, "[A]fter  the appointment  expired . . .            what are  their [sic]  rights of those  employees?   And that                             ___            Your Honor is  going to tell you, see,  in the instructions."            Defense  counsel   noted  that,  unlike   plaintiffs'  expert                                         -12-                                          12            witness,   "She  never  . . .  tell  [sic]  us  whether  [the                                                  ___            plaintiffs]   were    dismissed   or   not    for   political            discriminatory reasons.  That is for you to decide."  Defense            counsel did not  argue that the reasons  for the non-renewals            were that plaintiffs' appointments were irregular.            Instructions            ____________                      The judge instructed the jury that its duty was "to            follow the law as I shall state it to you" and that it should            not "base  [its] verdict upon any view  of the law other than            that given in  the instructions of the Court."  The court did            not otherwise specifically instruct the jury to disregard the            expert witnesses' opinions concerning the applicable law, but            rather  said expert  testimony  should  be  treated  just  as            testimony from any other witness.                      Significantly,  however, the  judge instructed  the            jury  that  any  irregularities in  the  appointments  of the            plaintiffs could not be used as a pretext for violating their            First Amendment rights:                           Now, conduct purportedly  engaged in                      consonance   with    the   Puerto    Rico                      personnel's law and regulation [sic] does                                                      ___                      not control a  claim alleging a violation                      of the  employees' First  Amendment right                      of political affiliation.                           A new administration  cannot use the                      doctrine of compliance with  state law or                      nullity under state  law as  a cover  for                      discharges, transfers  and discrimination                      based solely on political affiliation.                           Similarly,   a  new   administration                      cannot use the  fact that plaintiffs were                      hired  during  the  electoral prohibition                                     13  -13-                      period  or   "veda"  as  a   pretext  for                                    ____                      political discrimination.   In  the final                      analysis, the question of motivation is a                      question of fact.            The court also instructed:                           If   you   find   that   plaintiffs'                      political affiliation was  the motivating                      factor  for  the   non-renewal  of  their                      appointments, then you  may find for  the                      plaintiffs.            The court also gave this instruction:                           However,    if    you    find   that                      plaintiffs' appointments were not renewed                      because they  had been  appointed by  the                      former administration in violation of the                      personnel  and  electoral  laws  and  not                      because    of    plaintiffs'    political                      affiliation,  then you  may find  for the                      defendants.            The  judge  further   instructed  that,  although  transitory            employees  do not have tenure in  their jobs, their contracts            may   not  be  allowed  to  expire  for  political  reasons.7            Finally,  in response to  a request from  plaintiffs' counsel                                            ____________________            7.  The  Court: "Transitory -- the plaintiffs  in this action            were  transitory employees of  the Municipality of Canovanas.            Puerto  Rico   law  permits  the  employment   of  transitory            employees appointed for  a fixed term.  The  duration of this            designation  shall correspond  to the  period  for which  the            position was created.                      "The  law   provides   that   once   a   transitory            appointment expires,  defendant may terminate  the transitory            employee . . . for any reason  except if that reason is based            on political affiliation.   Defendant . . .  asserts that the            reason for not renewing plaintiffs' appointments or contracts            was that plaintiffs' contracts had expired and that they were            not   renewed  for   valid  reasons  wholly   independent  of            plaintiffs' political affiliation.                      "Plaintiffs  claims  [sic] that  their  position as                                            ___            transitory  employees  were  not  renewed  because  of  their            political affiliation.  So that is the issue."                                         -14-                                          14            for a  curative instruction,  the judge  instructed that  the            jury was  to consider  only evidence  that they  believed was            known to the decisionmakers at the time plaintiffs' contracts            were not renewed.8            Verdict            _______                      The  verdict  form   asked,  as  to  each   of  the            plaintiffs, "Do you find by  a preponderance of the  evidence            that the motivating  factor for not renewing  the appointment            of [plaintiff] was [his or her]  political affiliation?"  The            jury answered no in each case.                                         III.                                         III                      We review the district court's decision to admit or            exclude  evidence for  abuse  of  discretion.    See  General                                                             ___  _______            Electric Co. v. Joiner, 1997 WL 764563, at  *3 (U.S. Dec. 15,            ____________    ______            1997); Knowlton v. Deseret Med.  Inc., 930 F.2d 116, 124 (1st                   ________    __________________            Cir. 1991).            Legal Principles            ________________                      Because  the  parties exhibit  some  confusion over            long-established legal  principles in  this  area, we  repeat            them.   In  Elrod v. Burns,  427 U.S.  347 (1976),  a divided                        _____    _____                                            ____________________            8.   The  Court:  "In   determining  whether  the  defendants            discriminated or not, you  are not to consider any  testimony            or  evidence that you believe was not  present at the time of            [sic]  the  decision  not  to  renew  plaintiffs'  transitory             ___            appointment  was taken, for if the irregularity or misconduct            was  not discovered until  after the employee's  contract was            not renewed, the  employer could not  have been motivated  by            knowledge of it, and he  cannot now claim that the employee's            contract was not renewed for that reason."                                         -15-                                          15            Supreme  Court granted  some  First  Amendment protection  to            employees terminated  because of their  political affiliation            where political affiliation was not a  reasonably appropriate            requirement for the job.  See id. at 359 (plurality opinion).                                      ___ ___            As  Justice Stewart,  concurring,  said, a  "nonpolicymaking,            nonconfidential government employee [cannot] be discharged or            threatened   with   discharge   from  a   job   that   he  is            satisfactorily  performing  upon  the   sole  ground  of  his            political beliefs."  Id.  at 375 (Stewart, J.,  concurring in                                 ___            judgment).   In Branti  v. Finkel, 445  U.S. 507  (1980), the                            ______     ______            Supreme  Court reaffirmed Elrod, and explained that the First                                      _____            Amendment prohibits termination  of public employees  because            of their political affiliation  unless "the hiring  authority            can  demonstrate that  party  affiliation  is an  appropriate            requirement  for  the  effective performance  of  the  public            office involved."  Branti, 445 U.S. at 518.9                               ______                      This court has held that the  Elrod-Branti doctrine                                                    _____ ______            applies to a local government's decision whether to renew the            contract of a  transitory employee.  See  Cheveras-Pacheco v.                                                 ___  ________________            Rivera-Gonzalez,  809   F.2d  125   (1st  Cir.   1987).     A            _______________            municipality may not allow transitory employees' contracts to            expire  if the  primary motive  is to  punish them  for their            political  affiliation.   See id.  at 127-29.   This  is true                                      ___ ___                                            ____________________            9.  Defendants have  never  suggested  that  political  party            affiliation was  an appropriate  requirement for  any of  the            jobs that were held by the plaintiffs.                                         -16-                                          16            regardless  of whether the  employees have been  renewed on a            regular basis prior to their dismissal or, as is true of some            of plaintiffs here, have served  only one term.  See Figueroa                                                             ___ ________            v. Aponte-Roque,  864 F.2d 947,  951 (1st Cir. 1989).   Thus,               ____________            the  fact  that  a  transitory  employee  does  not   have  a            reasonable  expectation of renewal  in his or  her employment            that would require due process protections does  not defeat a            First Amendment claim.                      In Rutan v. Republican  Party of Ill., 497  U.S. 62                         _____    _________________________            (1990),   the  Supreme  Court   held  that  the  Elrod-Branti                                                             _____ ______            prohibition  against  political   affiliation  discrimination            applied  not  only  to discharges,  but  also  to significant            personnel  decisions such  as whether  to hire  or promote  a            public employee.   See Rutan, 487 U.S. at 79.  Hence, even if                               ___ _____            the  decision  not  to renew  a  transitory  appointment10 is            considered a hiring decision rather than a  discharge,  Rutan                                                                    _____            reinforces our rule announced in Cheveras-Pacheco.                                               ________________                                            ____________________            10.   As a practical  matter, given the Commonwealth's merit-            based  system  for  hiring  and   discharging  civil  service            employees, the risk is greater that transitory employees, who            may be more  easily hired and fired, may  suffer from the use            of unlawful patronage practices.  See 21 L.P.R.A.   4554.  It                                              ___            has   been    said   that   "invidious    political   [party]            discrimination  is  mainly  directed  against  humble  public            employees  or [those]  with scarce  resources."   Casiano  v.                                                              _______            Departamento de Educacion,  97 J.T.S. Case No. 33,  at p. 718            _________________________            (P.R.  Sup.  Ct.  March  19,  1997)  (Fuster-Berlingeri,  J.,            dissenting from denial of certiorari).                                         -17-                                          17                      And  the  Elrod-Branti-Rutan   principle  has  been                                _____ ______ _____            reinforced recently by the Supreme Court.  In Board of County                                                          _______________            Comm'rs v.  Umbehr, 116 S.  Ct. 2342 (1996) and  O'Hare Truck            _______     ______                               ____________            Serv., Inc. v. City of Northlake, 116 S. Ct. 2353 (1996), the            ___________    _________________            Supreme  Court  held   that  the  First   Amendment  provides            protection  to  independent  contractors   similar  to  those            afforded  government employees.   See Umbehr,  116 S.  Ct. at                                              ___ ______            2345-46   (termination  of   a  contract   in  reprisal   for            contractor's criticism of county government);  O'Hare, 116 S.                                                           ______            Ct. at 2355-56  (removal of an independent contractor  from a            list of towing  services employed by the  city in retaliation            for supporting opposing political party).              Expert Testimony on the Law            ___________________________                      Aspects of Santiago's testimony are very troubling.            Certain parts  of her  testimony --  for example,  concerning            actual personnel practices, the various  categories of public            employees and  the like -- are unobjectionable.  But Santiago            also testified as to the  holdings of various opinions of the            Supreme Court of Puerto Rico  and by reference, of this court            (over  objection), and  to the  legal  conclusion that  these            appointments were  in violation  of law  (without objection).            To  exacerbate  matters,  her  testimony  may  be  charitably            described  as  misleading  at  best  as  to  the   rights  of            transitory employees as a matter of federal law.                                         -18-                                          18                      It  is black-letter  law  that  "[i]t  is  not  for            witnesses to instruct the jury as to applicable principles of            law, but for the judge."  United States v. Newman, 49 F.3d 1,                                      _____________    ______            7  (1st Cir. 1995) (quoting Marx & Co. v. Diners' Club, Inc.,                                        __________    __________________            550 F.2d  505, 512 (2d Cir.  1977)).  At least  seven circuit            courts have held  that the Federal Rules of Evidence prohibit            such testimony,  and we now join them as to the general rule.            See Burkhart  v. Washington  Metro. Area  Transit Auth.,  112            ___ ________     ______________________________________            F.3d  1207, 1212-14  (D.C. Cir.  1997)  (reversible error  to            allow an  expert  in police  practices  to opine  on  whether            police  officers'  efforts  in  communicating  with  a   deaf            plaintiff   were   enough  to   satisfy   federal  disability            statutes);  Snap-Drape, Inc.  v. Commissioner,  98  F.3d 194,                        ________________     ____________            197-98  (5th  Cir.  1996)   (trial  court  properly  excluded            taxpayer's  expert reports  as containing  nothing more  than            legal  arguments  concerning  the  tax treatment  of  certain            dividends); Berry v. City  of Detroit, 25 F.3d 1342,  1353-54                        _____    ________________            (6th  Cir. 1994)  (finding inadmissible  the  comments of  an            expert in police  practices on the meaning of  the legal term            "deliberate indifference" in a civil rights case); Aguilar v.                                                               _______            International Longshoreman's Union, Local  #10, 966 F.2d 443,            ______________________________________________            447  (9th  Cir.  1992) (testimony  of  purported  expert that            workers reasonably  and  foreseeably  relied  on  defendants'            promises  addressed   "matters   of  law   for  the   court's            determination" that  were "inappropriate subjects  for expert                                         -19-                                          19            testimony");  Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988)                          ______    ______            (en banc)  (reversible error to  allow an expert  witness who            was an attorney to give his opinions on  what was required to            make consent to a search  effective); Adalman v. Baker, Watts                                                  _______    ____________            &  Co.,   807  F.2d  359,   366  (4th  Cir.   1986)  (finding            ______            inadmissible  proffered  expert opinion  concerning  whether,            under  securities laws, disclosure  of a particular  fact was            required in  the course of negotiating a transaction); Marx &                                                                   ______            Co.  v. Diners'  Club,  Inc.,  550 F.2d  505  (2d Cir.  1977)            ___     ____________________            (securities lawyer, called as an expert, could not testify to            the legal  obligations created under  a contract).   To state            the general  rule is not  to decide the far  more complicated            and measured question of when there is a transgression of the            rule.   We outline some  of the  considerations and  conclude            that the rule has been transgressed here.  We leave to future            cases  the defining of  the contours  of application  of this            rule.                      In  our legal  system,  purely legal  questions and            instructions to  the jury  on the  law to  be applied  to the            resolution  of the  dispute before  them  is exclusively  the            domain of  the judge.  Accordingly, expert  testimony on such            purely  legal issues  is rarely  admissible.   As the  Second            Circuit has  noted, "The  danger is that  the jury  may think            that the 'expert'  in the particular branch of  the law knows                                         -20-                                          20            more than the judge   -- surely an impermissible inference in            our system of law."  Marx & Co., 550 F.2d at 512.                                 __________                      The one well-recognized exception  is for questions            of  foreign law, where the judge may be aided by the expert's            assistance.   See Adalman, 807 F.2d  at 366; Marx &  Co., 550                          ___ _______                    ___________            F.2d at 510;  1 McCormick on  Evidence   12,  at 50 (John  W.                            ______________________            Strong,  ed., 4th  ed. 1992);  7 Wigmore  on Evidence    1953                                             ____________________            (Chadbourne rev.  1978).   Even in the  case of  foreign law,            under modern practice the testimony is generally given to the            judge, outside of the presence of  the jury, and is meant  to            assist the judge in determining the appropriate instructions.            See Adalman, 807 F.2d  at 366; 9  Wigmore on Evidence    2558            ___ _______                       ___________________            (Chadbourne rev. 1978).  Here,  the testimony was plainly not            offered to assist the judge,  who has presided over many such            political discharge cases, and was presented to the jury.                      Because  the  jury   does  not  decide  such   pure            questions of law,  such testimony is not helpful  to the jury            and so  does not  fall within  the literal terms  of Fed.  R.            Evid.  702, which  allows expert testimony  "[i]f scientific,            technical  or  other  specialized knowledge  will  assist the            trier of  fact to understand  the evidence or to  determine a            fact in  issue . . . ."   As the D.C. Circuit  noted, "Expert            testimony that consists of legal  conclusions cannot properly            assist the trier of fact in either respect . . . ." Burkhart,                                                                ________            112 F.3d at 1212; see  also Aguilar, 966 F.2d at 447  (expert                              ___  ____ _______                                         -21-                                          21            legal opinion does not assist the factfinder under Rule 702).            This is because the judge's expert knowledge of the law makes            any   such  assistance  at  best  cumulative,  and  at  worst            prejudicial.  See Burkhart, 112 F.3d at 1213 ("Each courtroom                          ___ ________            comes equipped with a 'legal  expert,' called a judge, and it            is his  or her province  alone to  instruct the  jury on  the            relevant legal  standards."); 7  Wigmore on  Evidence    1952                                             ____________________            (Chadbourne rev.  1978) ("It is  not the common  knowledge of            the  jury which renders the witness' opinion unnecessary, but            the special legal knowledge of the judge.")                      Similarly, Fed. R. Evid. 704(a), which removes  the            common-law  bar  on  "otherwise  admissible"  testimony  that            "embraces an  ultimate issue  to be decided  by the  trier of            fact," does  not vitiate the  rule against expert  opinion on            questions of  law.  The  common law did  not allow an  expert            witness to inform  the jury of his or  her factual conclusion            concerning the "ultimate issue" in the case, because this was            thought to invade the province of the jury.  The abolition in            Rule 704(a) of  this "ultimate issue" rule allows  the expert            witness to  offer his or  her factual conclusion in  order to            aid the jury,  which properly can choose to  accept or reject            it.  However, questions of law are not "to be decided  by the            trier of fact";  rather it is for the  judge, not the lawyers            or the witnesses, to inform the jury of the law applicable in                                         -22-                                          22            the case and  to decide any purely legal  issue.11  Recently,            this court  has cautioned that  the abolition of the  "bar on            'ultimate issue' opinions  . . . is not  a carte blanche  for            experts." Dincov. Dylex,Ltd.,111 F.3d964,973 (1stCir.1997).12                      _____   __________                      While  the testimony  by  Santiago described  above            clearly transgressed the general rule, we acknowledge that it            is  often  difficult  to  draw  the  line  between  what  are            questions of  law, what are  questions of fact, and  what are            mixed questions.  See, e.g., In re Air Disaster at Lockerbie,                              _________  ________________________________            Scotland on December  21, 1998, 37 F.3d 804,  826-27 (2d Cir.            ______________________________            1994) (regarding  expert's testimony that  defendants engaged            in "fraud"  and "deceit"  admissible because  the terms  were            used  in layman's  sense, while  finding  expert's conclusion                                            ____________________            11.   For similar  reasons, the question  of whether  a legal            rule  has  been clearly  established,  in  the  context of  a            qualified immunity defense to a    1983 action, is a question            decided by the  court, not the jury.  See St. Hilaire v. City                                                  ___ ___________    ____            of Laconia, 71 F.3d 20, 24 (1st Cir. 1995).  Thus, the Eighth            __________            Circuit  found  reversible  error in  allowing  a  witness to            espouse views concerning the  reasonableness of an  officer's            conduct in light of prevailing "Fourth  Amendment standards."            Peterson  v. City  of Plymouth,  60 F.3d  469, 475  (8th Cir.            ________     _________________            1995).   The jury's role  was only to  decide what facts were            known to the  officer at the time of the arrest, not whether,            in light of those facts, the officer's conduct was reasonable            under the applicable  legal standard and therefore  protected            by qualified immunity.  See id.                                      ___ ___            12.  Santiago  was  competent  to  testify  that  plaintiffs'            appointments were  irregular in the  sense that they  did not            conform  to   normal  personnel   practice,  but   her  legal            conclusion that the appointments were in violation of the law            was improper.    Because  there  was  no  objection  to  such            conclusions,   our  review  is  for  plain  error,  a  burden            plaintiffs  cannot  sustain  in  light  of  our  harmlessness            analysis.                                         -23-                                          23            that  defendants  violated   FAA  regulations  inadmissible);            Specht,  853  F.2d  805,  809 (discussing  the  distinction).            ______            Indeed, the definition of what is law and what is application            or  practice may  be difficult  to  ascertain.   This may  be            particularly so   when the issues involve not  only a statute            and formally  promulgated regulations,  but also  guidelines,            handbooks, advisory rulings,  interpretive bulletins, general            counsel's letter opinions, informational notices and  similar            accoutrements  of  the modern  bureaucratic state.   Further,            there   may  be  particular  areas  of  law,  such  as  legal            malpractice,  where  expert  testimony  on  legal  matters is            admissible where it would normally  be excluded.  We can also            hypothesize instances in rare,  highly complex and  technical            matters where a trial judge, utilizing limited and controlled            mechanisms, and as a matter of trial management, permits some            testimony seemingly at variance with the general rule.13  But            none of  those instances  are before us.   The  issues raised            here  are  routinely  before  the  federal  courts,  are  not            complex, and the use of such testimony was egregious.            Testimony Re After-Acquired Evidence            ____________________________________                                            ____________________            13.   Such  an instance  may be  patent litigation,  in which            technical experts  are generally  allowed to  comment on  the            scope  of a patent's  coverage and give  their conclusions on            the issue  of infringement.   See Snellman v. Rioch  Co., 862                                          ___ ________    __________            F.2d 283, 287 (Fed. Cir. 1988); Stearns Co. v. United States,                                            ___________    _____________            324 Fed. Cl. 264, 268-69 (1995).                                           -24-                                          24                      There  is   a  second   reason  the   admission  of            Santiago's testimony is very troubling.   That has to do with            application  of the after-acquired  evidence doctrine.14   In            McKennon  v. Nashville  Banner  Publ'g Co.,  115  S. Ct.  879            ________     _____________________________            (1995),  the Supreme  Court considered whether  an employee's            wrongdoing, discovered after  the termination of  employment,            which would have been sufficient to justify the decision, but            which  was not  known  to the  employer at  the  time of  the            decision  and so  could  not  have  motivated  the  decision,            foreclosed a  claim of age  discrimination.  See id.  at 882.                                                         ___ __            The Supreme Court held that such evidence was not relevant to                                                          ___            the employer's liability for age discrimination, but would be            relevant in determining what remedy was appropriate.  See id.                                                                  ___ ___            at  885.  If  the evidence would  have led  to the employee's            discharge  at some later date,  that would affect the measure                                            ____________________            14.    A question  may  be  raised  whether the  evidence  of            irregularities that Santiago  described meets the  definition            of after-acquired evidence under McKennon v. Nashville Banner                                             ________    ________________            Publ'g  Co.,  116 S.  Ct.  879  (1995).   McKennon  concerned            ___________                               ________            employee wrongdoing that would  normally cause termination of            employment.  We do not  know if the irregularities alleged in            this case would in fact  normally lead to termination or non-            renewal of  employment.    In  addition,  McKennon  expressly                                                      ________            considered  the  equitable  doctrine  of   unclean  hands  in            determining  that "the  employee's wrongdoing  must  be taken            into account,  lest  the employer's  legitimate  concerns  be            ignored."   Id. at 360.  Here, as the evidence was presented,                        ___            it  was   apparently  the  former   administration,  not  the            employees, who made the appointments allegedly against normal            procedures.   If  the  employees were  blameless,  it may  be            difficult to import  wholesale the McKennon doctrine.   Given                                               ________            the desultory treatment  of this aspect of the McKennon issue                                                           ________            by the parties and our disposition  of the case, we think  it            wiser to address the issue in some future case.                                         -25-                                          25            of  damages  and  the  appropriateness  of  reinstatement  as            equitable relief.  See id. at 885-86.  In Umbehr, the Supreme                               ___ ___                ______            Court adopted the McKennon approach in First Amendment claims                              ________            brought by public employees or  contractors.  See Umbehr, 116                                                          ___ ______            S. Ct.  at 2352  ("[I]f [plaintiff]  prevails, evidence  that            [defendants] discovered  facts after  termination that  would            have  led  to  a  later  termination  anyway . . .  would  be            relevant in assessing what remedy is appropriate.").                      Thus,  such  after-acquired  evidence  is  normally            admissible  only as  to remedy,  and not  on liability.   Yet            here,  it was seemingly offered, over objection, as pertinent            to  liability.   Those  portions  of    Santiago's  testimony            concerning  the  irregularities in  plaintiffs'  appointments            which  did not  consist of  legal  conclusions were  arguably            relevant  to damages,  but normally,  not to  liability.   On            appeal, plaintiffs only argue the issue of admissibility, and            the evidence was arguably admissible on damages.15                      To   prevail,   plaintiffs  must   show   abuse  of            discretion  in  admission of  the  evidence.    Any abuse  of            discretion  analysis is  complicated by  the  actions of  the                                            ____________________            15.  The trial  court erred in  failing to instruct the  jury            that  Santiago's testimony  was not  relevant in  determining            liability.  Although  the judge properly instructed  the jury            that it should not consider  evidence that it did not believe            was before  the decision maker  at the time of  the decision,            the risk  of prejudice  was such that  the judge  should have            stated  explicitly   that  Santiago's   testimony  concerning            irregularities was  not to  be considered in  any way  on the            question of liability.                                         -26-                                          26            parties  here.    While much  of  Santiago's  testimony would            normally  be   inadmissible,  plaintiffs  may   have  invited            defendants to respond in kind.  It was apparently  plaintiffs            who first  introduced the  topic of  legal conclusions  to be            drawn  from review of plaintiffs' personnel  files and of the            law about rights of public employees.  Plaintiffs argued that            the files showed no disciplinary warnings or other actions by            the employers which  provided cause for termination  of their            employment,   and   their   expert   may  have   engaged   in            inappropriate legal commentary. Defendants apparently did not            object, perhaps because they wanted to respond in kind.                      The trial judge evidently felt that this opened the            door to  the defendants'  expert.  "Opening  the door"  is an            evidentiary concept  which requires  careful weighing  of the            unfairness of allowing one  party's objectionable evidence to            remain  unanswered  against  the  danger of  compounding  the            problem with further inadmissible and potentially prejudicial            testimony.  See 1 McCormack on Evidence   57 (John W. Strong,                        ___   _____________________            ed.,  4th ed.  1992).   The  judge may  well  have felt  that            plaintiffs created the problem about which they now complain.            As plaintiffs did not provide this court with a transcript of            their own expert's testimony, we do not reach the question of            whether  the  judge   abused  his   discretion  in   allowing            Santiago's problematic testimony under an "opening  the door"            theory.                                         -27-                                          27                      To overcome the jury  verdict, plaintiffs must show            not only that there were errors under the abuse of discretion            standard,  but also  that the  district  court's errors  were            harmful.  "Only  if we answer both questions  in the positive            will [plaintiffs']  argument on  appeal prevail."   Ahern  v.                                                                _____            Scholz, 85 F.3d 774, 786 (1st Cir. 1996).            ______            Harmless Error            ______________                      In  a civil case,  the party asserting  error bears            the burden of demonstrating that the error was harmful, i.e.,            that it affected  that party's substantial rights.   See Fed.                                                                 ___            R. Civ. P.  61; Fed. R. Evid.  103; Federico v. Order  of St.                                                ________    _____________            Benedict  in R.I., 64  F.3d 1, 3  (1st Cir. 1995)  (burden of            _________________            showing harmful error  in a civil case is  on party asserting            error); Hygh v.  Jacobs, 961 F.2d 359, 364-65  (2d Cir. 1992)                    ____     ______            (holding  that objecting party had  not met burden of showing            that  admission  of  improper  legal  opinion  testimony  had            prejudicial  effect).    "In  determining  whether  an  error            affected a party's substantial right[s], the central question            is whether this court can  say with fair assurance . . . that            the  judgment was  not substantially  swayed  by the  error."            Ahern,  85 F.3d at  786 (citations, internal  quotation marks            _____            and original alterations omitted).                      Factors  considered in  determining the  likelihood            that  the  jury's  verdict was  substantially  swayed  by the            evidentiary error include both the centrality of the evidence                                         -28-                                          28            and the  prejudicial effect  of its  inclusion or  exclusion.            See id.   "We weigh these  factors in the context of the case            ___ ___            as  gleaned from the  record as a whole."   Id. (citation and                                                        ___            internal quotation marks omitted).   Ultimately, if we are in            "grave doubt"  concerning the likely  effect of the  error on            the verdict,  we treat the  error as if  it had  affected the            verdict.  See id.                      ___ ___                      Although normally  testimony such as  Santiago's as            to legal conclusions is  clearly wrong and such  testimony as            was proper  is limited,  at best, to  damages, we  cannot say            that the  testimony affected  the outcome  of the  trial, and            therefore, we consider it harmless.16                       The  district court's  instructions here  reinforce            the  conclusion that Santiago's testimony was not central nor            did it  actually prejudice  the jury's  decision.  The  judge            properly  instructed  that  "once  a  transitory  appointment            expires, defendant  may  terminate  the  transitory  employee            . . .  for any  reason  except  if that  reason  is based  on                                    ______  __ ____  ______  __ _____  __            political   affiliation."  (emphasis   added)     The   judge            _________   ___________            instructed,  not once  but several  times,  that the  central            issue  for the  jury to  decide  was whether  the motive  for                                            ____________________            16.  That plaintiffs  apparently  opened  the  door  to  such            testimony also bears  on the  harmless error  analysis.   The            jury may have had two  "experts" each opining on the law  and            may have disregarded  both experts as not helpful  on the key            question of motive.  In this case, the question of motive was            a straightforward  question of  whom the  jury believed,  the            Mayor or the plaintiffs.                                         -29-                                          29            plaintiffs'  non-renewals  was their  political  affiliation.            Finally, the verdict form itself  posed the question, "Do you            find by  a preponderance of the evidence  that the motivating            factor  for not renewing  the appointment of  [plaintiff] was            [his or her] political affiliation?"                      The judge did  expressly caution the jury  that the            municipal  defendants could not use compliance with state law            as  a pretext  for political  discrimination.   The  district            court instructed the jury that  they were not to consider any            facts that were not known  to the relevant decision makers at            the  time plaintiffs'  contracts were  allowed  to expire  in            deciding  whether  Soto's  administration  let plaintiffs  go            because  of their political  affiliation.17  As  the district            court explained, "if  the irregularity or misconduct  was not            discovered  until  after  the  employee's  contract  was  not            renewed,  the employer  could  not  have  been  motivated  by            knowledge of it, and he  cannot now claim that the employee's            contract was not renewed for that reason."                      Thus,  we do not find it likely, despite Santiago's            testimony, that  the jury  was confused  about the  rights of                                            ____________________            17.   In  finding  any  error harmless,  we  need not  decide            whether the  admission of the  evidence was erroneous  in the            first  instance.   Plaintiffs  themselves represented  to the            court that Soto's knowledge of the  illegalities was a viable            factual  issue  for  the  jury.    Plaintiffs  asked for  and            received  an instruction, which they said "would be curative"            of  the McKennon problem, that  the jury should disregard the                    ________            illegality evidence "if they believed that [the illegalities]            were discovered after the fact."                                           -30-                                          30            transitory  employees under the First Amendment.  As in Caro,                                                                    ____            the  issue in  this  case  was "the  factual  matter of  [the            municipality's]  reason for dismissing  the plaintiffs.   Was            [its]  motive political?"   Caro,  878 F.2d at  2.   The jury                                        ____            answered that question.   As we harbor no  "grave doubt," the            judgment  of  the district  court  is  affirmed.    Costs  to                                                   ________            appellees.                                         -31-                                          31
