Berkley v. Common Council of City of Charleston

• Decision Date: 11 August 1995
• Docket Number: No. 94-1121,94-1121
• Citation: 63 F.3d 295
• Parties: William BERKLEY, Jr.; Carrie L. Chance; Allen R. Copley; Alfred J. Carey; Harmon H. Marks; Basil S. Scott; William F. Thaxton, Plaintiffs-Appellants, v. The COMMON COUNCIL OF the CITY OF CHARLESTON, Defendant-Appellee. Regina Alexander, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 295

63 F.3d 295

64 USLW 2104

William BERKLEY, Jr.; Carrie L. Chance; Allen R. Copley;

Alfred J. Carey; Harmon H. Marks; Basil S.

Scott; William F. Thaxton, Plaintiffs-Appellants, v. The COMMON COUNCIL OF the CITY OF CHARLESTON, Defendant-Appellee.

Regina Alexander, Amicus Curiae.

No. 94-1121.

United States Court of Appeals, Fourth Circuit.

Argued June 6, 1995.

Decided Aug. 11, 1995.

ARGUED: James Anthony McKowen, Hunt, Lees, Farrell & Kessler, Charleston, WV, for appellants. John Richard Fowler, Huddleston, Bolen, Beatty, Porter & Copen, Charleston, WV, for appellee. ON BRIEF: Blake Benton, Huddleston, Bolen, Beatty, Porter & Copen, Charleston, WV, for appellee. Martha A. Geer, Patterson, Harkavy & Lawrence, Raleigh, NC, for amicus curiae.

Before ERVIN, Chief Judge, RUSSELL, WIDENER, HALL, MURNAGHAN, WILKINSON, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge LUTTIG wrote the majority opinion, in which Chief Judge ERVIN, Judges HALL, MURNAGHAN, WILKINS, NIEMEYER, HAMILTON, WILLIAMS, MICHAEL, and MOTZ and Senior Judge PHILLIPS joined. Senior Judge PHILLIPS wrote a special concurring opinion, in which Chief Judge ERVIN and Judge MURNAGHAN joined. Judge WIDENER wrote a dissenting opinion. Judge WILKINSON wrote a dissenting opinion, in which Judge RUSSELL and Judge WIDENER joined.

OPINION

LUTTIG, Circuit Judge:

We heard this case en banc to decide whether a municipality, here the City of Charleston, is entitled to absolute immunity from liability under 42 U.S.C. Sec. 1983 for the unconstitutional enactments and actions of its local legislature. The numerous circuits that have addressed the question have unanimously concluded, in recognition of Supreme Court precedent, that municipalities are not entitled to such an immunity. We now join our sister circuits and hold that a municipality is not immune from liability under section 1983 for the enactments and actions of the local legislative body.

I.

In Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities and other local governments are "persons" subject to liability for constitutional violations under 42 U.S.C. Sec. 1983. Id. at 690, 98 S.Ct. at 2035-36. A municipality may only be found liable under section 1983, however, where "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. Since Monell, municipalities and local governments have repeatedly, and unsuccessfully, attempted to secure some immunity from liability in suits brought under section 1983.

In the course of adjudicating these various claims to immunity, the Supreme Court has left no doubt that municipalities and local governments are not entitled to immunity from suits brought under section 1983. Chief Justice Rehnquist, writing for a unanimous Court, could not have been any clearer when he observed recently that "unlike various government officials, municipalities do not enjoy immunity from suit--either absolute or qualified--under Sec. 1983." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, --- U.S. ----, ----, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993). The Chief Justice based his observation in Leatherman on the Court's decision in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), where, in denying municipalities a qualified immunity defense to claims brought under section 1983, see id. at 650, 100 S.Ct. at 1415, the Court "held" that "municipalities have no immunity from damages liability flowing from their constitutional violations," id. at 657, 100 S.Ct. at 1418. In the face of such clear and broad pronouncements by the Supreme Court, we have little trouble concluding that a municipality is not immune from section 1983 liability for unconstitutional enactments and other legislative activities of the local legislature. ¹ Apart from the unequivocal statements in the Court's opinions, the reasoning employed by the Court in Owen forecloses any other conclusion. In Owen, the Court explained that it will only recognize an immunity from suit under section 1983 where "a tradition of immunity was so firmly rooted in the common law [at the time of the statute's enactment] and was supported by such strong policy reasons that 'Congress would have specifically so provided had it wished to abolish the doctrine.' " Id. at 637, 100 S.Ct. at 1408. After surveying the common law at the time of the enactment of section 1 of the Civil Rights Act of 1871, the predecessor statute to section 1983, and after evaluating the public policy considerations behind municipal liability, the Court held that there was no justification in history or tradition, or in policy, for affording municipalities immunity from suit under section 1983.

With regard to the inquiry into tradition, the Court unqualifiedly concluded that "there is no tradition of immunity for municipal corporations." Id. at 638, 100 S.Ct. at 1409. Though the Court was able to identify two common law doctrines that might have served as a basis for municipal immunity, it held that neither of these immunities survived Congress' enactment of section 1 of the Civil Rights Act of 1871. Id. at 644, 100 S.Ct. at 1412.

The first of these common law doctrines "sought to distinguish between a municipality's 'governmental' and 'proprietary' functions," with the municipality subject to liability for the latter, but immune from liability as to the former. Id. The Court found that by 1871, the immunity from suit for a municipality's "governmental functions" had largely been "nullified" by the states. Id. at 645-46, 100 S.Ct. at 1412-13; see also id. at 646, 100 S.Ct. at 1413 (referring to "nominal existence" of such an immunity). In any event, because the governmental function immunity was rooted in principles of sovereign immunity, id. at 645, 100 S.Ct. at 1412, the Court held that the immunity was "obviously abrogated" by the enactment of section 1983, id. at 647, 100 S.Ct. at 1413:

By including municipalities within the class of "persons" subject to liability for violations of the Federal Constitution and laws, Congress--the supreme sovereign on matters of federal law--abolished whatever vestige of the State's sovereign immunity the municipality possessed.

Id. at 647-48, 100 S.Ct. at 1413-14 (footnote omitted).

The Court in Owen identified as a second common law protection available to municipalities in the nineteenth century a doctrine that "immunized a municipality for its 'discretionary' or 'legislative' activities," but which did not protect municipalities from liability for acts "ministerial" in nature. Id. at 644, 100 S.Ct. at 1412. This doctrine was grounded in separation of powers principles, the concern being that "[f]or a court or jury ... to review the reasonableness of the city's judgment on [discretionary or legislative] matters would be an infringement upon the powers properly vested in a coordinate and coequal branch of government." Id. at 648, 100 S.Ct. at 1414. As it had found with the municipality's common law immunity from liability for its "governmental" actions, the Court found the municipality's immunity from liability for its "discretionary" or "legislative" activities to be largely hollow at the time Congress enacted the Civil Rights Act of 1871. Id. at 649, 100 S.Ct. at 1414. More importantly, the Court found that the very rationale behind the immunity for discretionary activities precluded any claim that the immunity survived the enactment of section 1983:

Th[e] common-law doctrine [of legislative or discretionary immunity] merely prevented courts from substituting their own judgment on matters within the lawful discretion of the municipality. But a municipality has no "discretion" to violate the Federal Constitution; its dictates are absolute and imperative. And when a court passes judgment on the municipality's conduct in a Sec. 1983 action, it does not seek to second-guess the "reasonableness" of the city's decision nor to interfere with the local government's resolution of competing policy considerations. Rather, it looks only to whether the municipality has conformed to the requirements of the Federal Constitution and statutes.

Id. The Court in Owen thus rejected any sovereign immunity or separation of powers justification for municipality immunity from suit under section 1983, and the Court was able to identify no other possible historical or doctrinal source of immunity from suit for constitutional violations.

If there were any doubt that the Court's pronouncements in Leatherman and Owen, coupled with the Court's reasoning in Owen, preclude the municipal legislative immunity asserted in this case, it is obvious from the facts before the Court in Owen that the abrogation of municipality immunity effected by section 1983 extends as well to a municipality's legislative activities. In Owen, the local Chief of Police claimed that the City of Independence, the City Manager, and members of the City Council in their official capacity, had deprived him of his protected liberty interest in his "good name, reputation, honor, or integrity" without due process of law, in violation of the Fourteenth Amendment. Id. at 633 n. 13, 100 S.Ct. at 1406 n. 13 (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971)). Specifically, he alleged that "the city--through the unanimous resolution of the City Council--released to the public an allegedly false statement impugning [his] honesty and integrity." Id. ² Thus, the plaintiff in Owen, like the plaintiffs in this case, directly challenged the city's exercise of a core legislative function, embodied in an official vote of the local legislative body. ³...