Bryant v. Nichols, Civ. A. No. 88-T-623-N.

• Citation: 712 F. Supp. 887
• Decision Date: 17 March 1989
• Docket Number: Civ. A. No. 88-T-623-N.
• Parties: Lucie C. BRYANT, Plaintiff, v. Ken NICHOLS, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

712 F. Supp. 887

Lucie C. BRYANT, Plaintiff, v. Ken NICHOLS, et al., Defendants.

Civ. A. No. 88-T-623-N.

United States District Court, M.D. Alabama, N.D.

March 17, 1989.

Gary E. Atchison, Montgomery, Ala., for plaintiff.

Randall Morgan, Hill, Hill, Carter, Franco, Cole & Black, Montgomery, Ala., for defendants, Nichols, Weaver, Carter and City of Andalusia.

MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

Lucie C. "Pollie" Bryant, an employee of the City of Andalusia, Alabama, has brought this lawsuit against the City of Andalusia, Alabama, and several of its officials, charging them with, among other things, retaliating against her in violation of the first amendment as enforced by 42 U.S.C.A. § 1983. Ms. Bryant contends that the various defendants violated her constitutional rights by taking several adverse actions against her, including demoting her. She claims that all of these actions were done in retaliation for her exercise of her constitutional rights to petition the government and to speak and associate freely.

On February 21, 1989, two of the defendants, Ken Nichols and Roy H. Weaver, Jr., filed a motion for summary judgment, asserting that as members of the Andalusia city council they are entitled to absolute legislative immunity. In a brief order dated March 15, 1989, the court denied the motion, with a statement that a memorandum opinion would follow shortly. This is the promised memorandum opinion.

I.

Ms. Bryant's dispute with defendants goes back at least to late 1985, when she was demoted after returning to work following an illness. She challenged this action in federal court, suing certain of the officers of Andalusia, including some or all of the defendants in the suit now before this court. That suit reached settlement. Shortly after this settlement, Chalmers Bryant, the mayor of Andalusia and Ms. Bryant's brother-in-law, upgraded her employment position and increased her salary.

Subsequently, however, the city transferred Ms. Bryant to a less desirable position, with an accompanying pay cut. Ms. Bryant asserts that the defendants caused her to be transferred in retaliation for her filing her prior lawsuit. She contends that, through the "cooperative efforts" of Nichols, Weaver, and two other individuals, a letter was drafted recommending that she be transferred and effectively demoted. This letter, she claims was then delivered to Mayor Bryant who was in the hospital. In this letter, which was addressed to the city council, Mayor Bryant alerted the council to his deteriorating health condition, and stated:

Realizing that administrative matters directly affecting the operation of City government must be dealt with expeditiously, I hereby agree to the following: 1. That Mrs. Polly Bryant be transferred to the Street and Sanitation Department as a Secretary at a pay scale applicable for that job classification. This action is recommended because the settlement in Mrs. Bryant's lawsuit against the City did not find the City had wrongfully transferred, demoted or changed her rate of pay....

This letter was presented to the city council during their meeting that night. According to the minutes of that meeting, the council took up the issue of Ms. Bryant's transfer and demotion shortly after granting the mayor a medical leave of absence with pay. As described in the minutes, Weaver, acting as mayor at this meeting, "called for an informal vote relative to these recommendations as a show of support." At that point, councilmember James Krudop interjected,

Mayor Pro Tem, it seems to me in order and that we just granted Chalmers Bryant this 90 day request, that you are empowered to do what must be done as Mayor of the City whereas Mayor Bryant had this responsibility earlier. It seems to me that you use your best judgement and your legal counsel to proceed as necessary and lead us back into a most prosperous and positive light.

Krudop then abstained from the vote, noting his view that Weaver as acting mayor bore the authority to make personnel decisions. After the council's positive vote, he apparently reiterated that the council only showed support for the mayor's inclination and did not purport to make personnel decisions on its authority. Councilmember Edgar King then asked both Weaver and the city clerk if any changes in Ms. Bryant's employment status had been executed, to which both replied that no changes had been made.

A few days later, Mayor Bryant signed a personnel action form effecting this change in Ms. Bryant's status; Weaver, as mayor pro tem, was a cosigner to the personnel action form.

II.

In their motion for summary judgment, Nichols and Weaver argue that they engaged in only legislative activity in the circumstances surrounding Ms. Bryant's transfer and demotion. As members of the Andalusia city council who voted on the recommendation to change Bryant's employment status, they maintain that they are immune from suit on the basis of the doctrine of absolute legislative immunity.

The applicability of the doctrine of legislative immunity, which has its roots in English legal history, was first recognized by the Supreme Court in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). In Tenney, the Supreme Court held that state legislators engaged "in the sphere of legislative activity" are absolutely immune from suit under § 1983.¹ Id., at 376, 71 S.Ct. at 788. In reaching its holding, the Supreme Court stressed the need to ensure unfettered decision-making by those charged with the responsibility of determining public policy:

Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130, 3 L.Ed. 162, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned.

Id., at 377, 71 S.Ct. at 788.

Relying upon these same policy considerations, the Supreme Court later extended the doctrine of legislative immunity to apply to "regional legislators," Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). To date, however, the Court has voiced no opinion as to whether such immunity extends to "individuals performing legislative functions at the purely local level." Id., at 404 n. 26, 99 S.Ct. at 1178-79 n. 26. But see Longo v. United States, ___ U.S. ___, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989) (granting certiorari to consider question of whether local legislator can be held in contempt for actions taken within the scope of his legislative activities).

While the Supreme Court has not yet broached the application of legislative immunity to local officials, the parties agree that the law of this circuit recognizes absolute immunity for local legislators against liability arising out of their legislative acts. See Healy v. Town of Pembroke Park, 831 F.2d 989, 993 (11th Cir.1987); Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829 (11th Cir.1982), cert. denied, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 791 (1983). Thus, the issue before the court is whether, under the facts of this case, Nichols and Weaver were engaging in legislative activity so as to be entitled to the doctrine's protection. Upon consideration of the record to date, the court concludes that they were not.

Weaver and Nichols bear the burden of establishing their claim of immunity from liability. See Forrester v. White, 484 U.S. 219, ____, 108 S.Ct. 538, 542, 98 L.Ed.2d 555 (1988). To satisfy this burden, they must demonstrate that their actions, which Lucie Bryant claims deprived her of protected rights, were legislative in nature. As the Eleventh Circuit has emphasized, "It is the official function that determines the degree of immunity required, not the status of the acting officer." Espanola Way, 690 F.2d at 829, (quoting Marrero v. City of Hialeah, 625 F.2d 499, 508 (1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981) (emphasis in original)). Indeed, the Supreme Court has frequently acknowledged that officials may be entitled to absolute immunity for some of the actions that they have undertaken, but are deserving of no such protection for the performance of other duties. See Forrester v. White, 484 U.S. at ____, 108 S.Ct. at 544-45 (state court judge not entitled to absolute immunity when performing administrative employment functions); Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 731-37, 100 S.Ct. 1967, 1975-77, 64 L.Ed.2d 641 (1980) (classifying some actions of the Virginia Supreme Court as being legislative and others as being those of enforcement and discussing the differing legal ramifications associated with the varying types of activity). Because there is no bright line separating a city's administrative actions from its legislative actions, the court must examine the specific activity complained of and assess whether it was performed in the course of legislative duties. Looking to both the facts of this case and the applicable law concerning application of legislative immunity, the court is convinced that the defendants have not established that any actions they took were in their legislative capacity.

First, from a factual perspective, Weaver and Nichols have not shown that their decisions and subsequent actions affecting Ms. Bryant's employment status were performed in the course of fulfilling a legislative function. As an initial observation, the court notes that Mayor Bryant himself considered the issue of Ms. Bryant's...