Goldberg v. Town of Rocky Hill

• Citation: 973 F.2d 70
• Decision Date: 10 August 1992
• Docket Number: D,No. 1103,1103
• Parties: Kenneth D. GOLDBERG, Plaintiff-Appellee, v. TOWN OF ROCKY HILL, Defendant-Appellant. Dana Whitman, Jr., Frances Sacerdote, Paul Daukas, Paul Delaney, William Pacella, Joseph Senofonte, Joseph Tomassone, Donald Unwin, Thomas Waldron, and Christine Zazzaro, Defendants. ocket 91-9290.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 70

973 F.2d 70

Kenneth D. GOLDBERG, Plaintiff-Appellee, v. TOWN OF ROCKY HILL, Defendant-Appellant.

Dana Whitman, Jr., Frances Sacerdote, Paul Daukas, Paul

Delaney, William Pacella, Joseph Senofonte, Joseph

Tomassone, Donald Unwin, Thomas Waldron,

and Christine Zazzaro, Defendants.

No. 1103, Docket 91-9290.

United States Court of Appeals,

Second Circuit.

Argued March 16, 1992.

Decided Aug. 10, 1992.

William S. Zeman, West Hartford, Conn. (Joel M. Ellis, of counsel), for defendant-appellant.

Martin S. Stillman, Rocky Hill, Conn. (Stillman & Dicara, of counsel), for plaintiff-appellee.

Before: MESKILL, Chief Judge, PRATT, Circuit Judge, and NICKERSON, District Judge of the United States District Court for the Eastern District of New York, sitting by designation.

GEORGE C. PRATT, Circuit Judge:

Surprisingly, the issue that is presented by this appeal--absolute immunity for a municipal corporation--has not previously been decided in this circuit. The Town of Rocky Hill, Connecticut, claims it is entitled to absolute legislative immunity from damages alleged to have been suffered by plaintiff Kenneth D. Goldberg when the town, by legislative action, eliminated his job as a supernumerary police officer in retaliation for Goldberg's having supported the chief of police on a controversial issue. The district court held that by logical extension of Supreme Court precedent, a municipality enjoys no absolute legislative immunity for its unconstitutional legislation; it therefore denied the town's motion to dismiss the complaint. 740 F.Supp. 118. On this interlocutory appeal, we agree with the analysis of the district court, and therefore affirm.

I. FACTS

Goldberg was one of five, part-time, supernumerary police officers for the town. He was commander of the crime-prevention bureau and in charge of all town supernumerary police officers. On April 7, 1987, a lieutenant of the Rocky Hill Police Department cancelled a dispatch of two police officers to a call, because the term "Puerto Ricans" was used to describe two "suspicious looking" individuals, although there was no actual evidence to suggest wrongdoing. An automobile was later reported stolen from the area in which the two individuals had been sighted. A citizen filed a complaint against the lieutenant on April 23, 1987, alleging misconduct for having recalled the police cruiser. At a town council meeting attended by all council members on June 15, 1987, the chief of police declined to discipline the lieutenant, stating that he had acted in good faith and had used his best judgment.

Goldberg publicly indicated on several occasions that he supported the chief of police, and that he felt the town officials--the mayor, the town council members, and the town manager--were wrong to criticize the chief concerning his handling of the incident. After the June 15 council meeting, Goldberg became the victim of various official slights. For example, the town manager subjected Goldberg to harassing and demeaning directives, excluded him from plainclothes detail, and stripped him of the title of "Commander" which he had held for two and one-half years. A short time later, the town council passed two separate resolutions. The first limited the hours that supernumerary police officers were permitted to work per week; the second eliminated from the budget entirely the positions of all supernumerary police officers. Soon thereafter, town manager Whitman contacted a number of the former supernumeraries and offered them positions as "Special Constables" pursuant to Conn.Gen.Stat. § 7-92, but he made no such offer to Goldberg.

II. PROCEDURAL BACKGROUND

Goldberg brought this suit under 42 U.S.C. § 1983, claiming that the actions taken by the town against him were in retaliation for his constitutionally-protected public defense of the chief of police. His complaint named as defendants the town, its mayor, its town manager, and its eight councilmen. All of the individual defendants were sued in their official, not individual, capacities.

Claiming absolute legislative immunity as local legislators, the individual defendants moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1). On that motion, the district court held: (A) that because the individual defendants were sued in their official capacities, the suit against them was the equivalent of a suit against the town itself; (B) that the individual defendants were exposed to no personal liability, because any judgment would be entered against the town; and (C) that the individuals, therefore, did not enjoy absolute legislative immunity against Goldberg's official-capacity claims against them.

The individual defendants appealed the interlocutory order denying their motion to dismiss, but the appeal was withdrawn on consent, induced apparently by the plaintiff's stipulation to dismiss the action against all defendants except the town itself.

The town then moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), also claiming absolute legislative immunity. The town argued: (A) that the conduct complained of was a retaliatory elimination of Goldberg's position from the town budget, unquestionably a legislative act; (B) that a suit against the town is the same as a suit against the town legislators in their official capacities; (C) that the legislators, when sued in their official capacities, have absolute legislative immunity; and (D) that the town logically must also have absolute immunity for the legislation enacted by its legislators.

The district court rejected the logic of the town's argument and, based primarily on a series of statements by the Supreme Court, denied the motion to dismiss, holding that the town was not entitled to absolute immunity for its legislative act. Viewing the district court's order as an immediately-appealable collateral order, the town brought this interlocutory appeal. See Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) ("denial of substantial claim of absolute immunity is an order appealable before final judgment"); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949).

III. DISCUSSION

Discussion of this immunity issue begins with, and indeed very nearly ends with, an examination of the Supreme Court's landmark decision in Monell v. Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). There, overruling a portion of its decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Court concluded that a municipality is a "person" amenable to suit under § 1983, although its liability could not be based upon the principle of respondeat superior. Monell, 436 U.S. at 690-91, 98 S.Ct. at 2035-36. Instead, a municipality could be held liable "when execution of [the municipality's] policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy". Monell, 436 U.S. at 694, 98 S.Ct. at 2037 (emphasis added). The official policy must be "the moving force of the constitutional violation". Id. Elsewhere in the opinion, the Court expanded on the potential liability of municipalities: "Local governing bodies * * * can be sued directly under § 1983 for monetary, declaratory, or injunctive relief 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. at 690, 98 S.Ct. at 2035-36.

In this case, all parties agree that the focal point of the conduct Goldberg complains of--elimination of his position as a supernumerary policy officer--was a legislative act of the town and therefore qualifies under Monell as municipal "policy * * * made by its lawmakers", id. at 694, 98 S.Ct. at 2037, for which the town could be held liable absent immunity. The town pursues on appeal, however, its claim, rejected by the district court, that it is entitled to absolute immunity for its legislative acts. We reject the claim out of hand.

We accept, of course, the town's assertion that legislators are accorded absolute immunity from suits for damages under § 1983. See Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951) (state legislators); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 403-05, 99 S.Ct. 1171, 1178-79, 59 L.Ed.2d 401 (1979) (members of a regional planning agency). While this circuit has apparently not previously ruled on the question of the entitlement of local legislators to absolute immunity, we noted in United States v. City of Yonkers, 856 F.2d 444, 456 (2d Cir.1988), rev'd on other grounds sub nom. Spallone v. United States, 493 U.S. 265, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990), that at least nine other circuits have extended absolute immunity to local legislators. See, e.g., Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 21 (1st Cir.1992); Haskell v. Washington Township, 864 F.2d 1266, 1277 (6th Cir.1988); Aitchison v. Raffiani, 708 F.2d 96, 98-100 (3d Cir.1983); Reed v. Village of Shorewood, 704 F.2d 943, 952-53 (7th Cir.1983); Espanola Way Corp. v. Meyerson, 690 F.2d 827 (11th Cir.1982), cert. denied, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 791 (1983); Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1349-50 (9th Cir.1982); Hernandez v. City of Lafayette, 643 F.2d 1188, 1193-94 (5th Cir. Unit A 1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982); Bruce v. Riddle, 631 F.2d 272, 279 (4th Cir.1980); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 613-14 (8th Cir.1980). Chief Judge Brieant of the Southern District of New York similarly concluded that local legislators were entitled to immunity, Dusanenko v. Maloney, 560 F.Supp. 822, 827 (S.D.N.Y.1983), and although we affirmed, see 726 F.2d 82 (2d Cir.1984), our affirmance was based on an alternate ground. Id. at 84. We agree, however, with...