Chateaubriand v. Gaspard, 95-36086

• Decision Date: 07 October 1996
• Docket Number: No. 95-36086,95-36086
• Citation: 97 F.3d 1218
• Parties: 12 IER Cases 214, 96 Cal. Daily Op. Serv. 7425, 96 Daily Journal D.A.R. 12,203 Francisco CHATEAUBRIAND, Plaintiff-Appellee, v. Marcus GASPARD and Kate Brown Gaspard; Martin Brown and Betty Brown; Sid Snyder and Jane Doe Snyder; James Jesernig and Jane Doe Jesernig; and Paul Berendt and Jane Doe Berendt, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1218

97 F.3d 1218

12 IER Cases 214, 96 Cal. Daily Op. Serv. 7425,

96 Daily Journal D.A.R. 12,203

Francisco CHATEAUBRIAND, Plaintiff-Appellee, v. Marcus GASPARD and Kate Brown Gaspard; Martin Brown and Betty Brown; Sid Snyder and Jane Doe Snyder; James Jesernig and Jane Doe Jesernig; and Paul Berendt and Jane Doe Berendt, Defendants-Appellants.

No. 95-36086.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 7, 1996.

Decided Oct. 7, 1996.

W. Dale Kamerrer, Law, Lyman, Daniel, Kamerrer & Bogdanovich, Olympia, WA, for defendants-appellants.

Paul A. Lindenmuth, Law Offices of Neil J. Hoff, Tacoma, WA, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington, Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-94-05641-FDB.

Before WRIGHT, BEEZER and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether state legislators are immune from suit for allegedly firing an employee who opposed performing illegal political campaign activity.

I

In 1985 the Washington State Senate Democratic Caucus (the "Caucus") hired Francisco Chateaubriand as a public information officer in its communications department. Chateaubriand was promoted to the position of Communications section Coordinator in April 1990. The Communications section Coordinator managed personnel who prepared and distributed press materials, newsletters, questionnaires, speeches, and other materials for senators.

In the fall of 1990, Chateaubriand grew concerned that staff members of the Caucus were engaged in illegal campaign activity. Washington state law generally prohibits the use of state equipment, facilities, and employees' time for political campaign purposes. According to Chateaubriand, Paul Berendt, the Legislative Services section Coordinator, led the illegal use of staff and facilities for political campaigns. In November 1990, Marcus Gaspard was elected Democratic Leader within the Caucus, and Sid Snyder was elected Caucus Chairman. Martin Brown was appointed Caucus Staff Director. Following the 1991 legislative session, these Caucus leaders decided to evaluate and reorganize their staff.

Berendt suggested that the Caucus merge his section, Legislative Services, with Chateaubriand's section, Communications. Chateaubriand "vehemently objected" to this suggestion, fearing that a merger would shift illegal campaign work to his staff. Chateaubriand had previously refused requests to perform illegal campaign-related activities. At meetings with James Jesernig, then a Democratic member of the State Senate, Chateaubriand complained that there was no need for the Communications staff to perform illegitimate functions. Chateaubriand was "vocal" in his opposition to performing illegal work, protesting his concerns to Brown and others. Chateaubriand claims that in 1991 he was "frozen out" of the Caucus' "inner circle" of leadership. In 1992 Brown recommended to Gaspard and Snyder that they replace Chateaubriand with Linda Schactler as Communications section Coordinator, and demote Chateaubriand to a Senior Information Officer position. Gaspard and Snyder agreed to follow the recommendation. On March 18, 1992, Brown informed Chateaubriand that Schactler would replace him as Coordinator.

The parties dispute the reasons why Chateaubriand was demoted. According to Brown, Snyder, and Gaspard, Chateaubriand was simply not the best manager for the position. The decision to demote him, they argue, had nothing to do with his complaints about illegal campaigning. Gaspard and Snyder deny that they even knew Chateaubriand had voiced such concerns.

According to Chateaubriand, however, it is "simply inconceivable" that his opposition to illegal political work was not communicated to the Caucus leadership. He has "no doubt" that the "leadership ... wanted [him] out so they could use [his] staff for unlawful political purposes in the 1992 election."

Chateaubriand left his employment with the Caucus on June 30, 1992. While Chateaubriand claims that he received a permanent layoff notice in mid-June 1992, Brown denies that the Caucus ever terminated Chateaubriand's employment. According to Brown, Chateaubriand voluntarily resigned on May 4, 1992, requesting a final date of June 30, 1992.

Following an investigation in 1992, the Public Disclosure Commission ("PDC") issued a report finding that staff members of the Senate Democratic Caucus had engaged in illegal campaign activities.

Chateaubriand commenced this action in district court on December 19, 1994, pursuant to 42 U.S.C. § 1983. The complaint alleges that the Caucus leadership demoted and terminated him "in retaliation for his refusal to support and participate in illegal and unethical campaign activities on state premises." This conduct, he asserts, violated his First Amendment right to freedom of speech. ¹

On August 16, 1995, the district court granted summary judgment in favor of Jesernig and Berendt for lack of personal involvement. It also initially granted summary judgment as to Brown, Gaspard, and Snyder based on absolute legislative immunity. Upon reconsideration, however, the district court reversed its decision as to them. The court concluded in its order of October 2, 1995, that Brown, Gaspard, and Snyder ("the Caucus leaders") did not have absolute legislative immunity since terminating Chateaubriand's employment was an administrative act, not a legislative act. The court also denied summary judgment on the merits, finding that triable issues existed as to whether the Caucus leaders terminated Chateaubriand in retaliation for protected speech. Based on the principle that discharging a public employee in retaliation for protected speech violates clearly established law of which a reasonable person would have known, the district court further rejected the defense of qualified immunity.

The Caucus leaders interlocutorily appeal from the district court's order denying them summary judgment based on absolute and qualified immunity. We have jurisdiction under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985).

II

Brown, Gaspard, and Snyder contend that they are entitled to absolute legislative immunity for their decision to demote and replace Chateaubriand. ²

The Supreme Court "has generally been quite sparing in its recognition of claims to absolute official immunity." Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555 (1988). It is established, however, that "state legislators enjoy common-law immunity from liability for their legislative acts ... that is similar in origin and rationale to that accorded Congressmen under the Speech or Debate Clause." Supreme Court of Va. v. Consumers Union of the United States, Inc., 446 U.S. 719, 732, 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641 (1980) (citing Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951) (section 1983 does not abrogate the common law immunity of state legislators)).

To determine whether legislative immunity applies, courts look to "the nature of the function performed, not the identity of the actor who performed it." Forrester, 484 U.S. at 229, 108 S.Ct. at 545. Absolute immunity applies only when legislators act in their legislative capacities, not in their administrative or executive capacities. Tenney, 341 U.S. at 379, 71 S.Ct. at 789-90. We must resolve whether Chateaubriand's demotion and replacement was a legislative act, to which immunity attaches, or an administrative act, to which it does not.

"In this circuit, we determine whether a particular act is legislative by considering two primary factors. First, does the act involve ad hoc decisionmaking, or the formulation of policy? Second, does the act apply to a few individuals, or the public at large?" Chappell v. Robbins, 73 F.3d 918, 920 (9th Cir.1996) (citing Trevino v. Gates, 23 F.3d 1480, 1482 (9th Cir.), cert. denied, 513 U.S. 932, 115 S.Ct. 327, 130 L.Ed.2d 286 (1994); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580 (9th Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2115, 85 L.Ed.2d 480 (1985)) (other citation omitted).

Applying these factors, courts generally consider legislators' employment and personnel decisions to be administrative, rather than legislative, acts. See, e.g., Smith v. Lomax, 45 F.3d 402, 405 (11th Cir.1995) ("[t]ypically, legislators' employment decisions are deemed administrative acts"); Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 28 (1st Cir.1994) (decision to replace librarian in legislative services office with member of another political party was administrative act), cert. denied, --- U.S. ----, 115 S.Ct. 1098, 130 L.Ed.2d 1066 (1995); Roberson v. Mullins, 29 F.3d 132, 135 (4th Cir.1994) (county board's termination of county employee was not legislative act). ³ The decision to demote and to replace Chateaubriand did not involve the formulation of policy, nor did it apply to the public at large. It therefore was an administrative act.

The Caucus leaders' contention that the court must examine the unique relationship between a legislative staff member and a political party caucus misreads Forrester 's functional approach to immunity questions. Forrester held that a state judge acted in an administrative capacity when he demoted and discharged a probation officer. 484 U.S. at 229, 108 S.Ct. at 545. Immunity did not protect the judge's decision even though the probation officer "performed functions that were inextricably tied to discretionary decisions that have consistently been considered judicial acts." Id. at 222, 108 S.Ct. at 541 (internal quotation marks and citation omitted).

There is "no basis for distinguishing the importance of a probation officer's functions to a state-court judge from the importance of a legislative researcher, or aide, to a state legislator." Gross v. Winter, 876 F.2d 165, 172 (D.C.Cir.1...