Kamplain v. Curry County Bd. of Com'rs

• Decision Date: 27 October 1998
• Docket Number: No. 97-2144,97-2144
• Citation: 159 F.3d 1248
• Parties: 98 CJ C.A.R. 5642 Gary KAMPLAIN, Plaintiff--Appellee, v. CURRY COUNTY BOARD OF COMMISSIONERS; Frank H. Blackburn; Paul D. Barnes; Darrel Bostwick; Johnny Chavez; and Joel David Snider, Defendants--Appellants, and Mike Jackson, Sheriff, and Matt Murray, Chief Deputy, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1248

159 F.3d 1248

98 CJ C.A.R. 5642

Gary KAMPLAIN, Plaintiff--Appellee, v. CURRY COUNTY BOARD OF COMMISSIONERS; Frank H. Blackburn Paul D. Barnes; Darrel Bostwick; Johnny Chavez and Joel David Snider, Defendants--Appellants and Mike Jackson, Sheriff, and Matt Murray, Chief Deputy, Defendants.

No. 97-2144.

United States Court of Appeals Tenth Circuit.

Oct. 27, 1998.

Emily A. Franke (James P. Lyle with her on the briefs) of Butt, Thornton & Baehr, P.C., Albuquerque, NM, for Defendants-Appellants.

Kenneth C. Downes of Kenneth C. Downes & Associates, P.C., Albuquerque, NM, and Stephen G. French, Albuquerque, NM (Christopher L. Harlos of Kenneth C. Downes & Associates, P.C., Albuquerque, NM, with them on the brief), for Plaintiff-Appellee.

Before PORFILIO, McKAY, and BRORBY, Circuit Judges.

McKAY, Circuit Judge.

This civil rights action arose from the actions taken by the Curry County Board of Commissioners in August 1996. Plaintiff Mr. Gary Kamplain attended a Curry County Commission public hearing on August 6, 1996, at which he represented his employer, Tom Growney Equipment, Inc., in the awarding of bids. Plaintiff was removed from the public hearing after he protested the Board's award of a bid to a competitor of his employer. At the regularly scheduled Board meeting on August 20, 1996, the Board voted to ban Plaintiff from all future Commission meetings. The Board notified Plaintiff and his employer of its action by letter. After receiving a letter of complaint from Plaintiff's attorney, the Curry County Attorney sent a letter dated August 27, 1996, to Plaintiff's attorney informing Plaintiff that, while he could attend Commission meetings, he would not be permitted to speak before or participate in discussions with the Board.

Plaintiff filed this 42 U.S.C. § 1983 action for injunctive relief and damages in which he alleged that his First Amendment right to free speech was violated. ¹ Defendants, the Board and individual members of the Board, ² filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss on grounds of absolute legislative immunity. Defendants appeal the district court's denial of their motion to dismiss. In addition, the district court retained jurisdiction pending this appeal after certifying that the appeal was frivolous. See United States v. Hines, 689 F.2d 934, 936-37 (10th Cir.1982). Citing the district court's certification of Defendants' appeal as frivolous, Plaintiff moves this court for damages and costs pursuant to Federal Rule of Appellate Procedure 38.

We have jurisdiction to address whether Plaintiff's claims are barred by absolute legislative immunity because the district court's denial of immunity "turns on an issue of law," and, therefore, it "is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We review de novo the decision of the district court denying a motion to dismiss based on absolute immunity. See id.; Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir.1994), cert. denied sub nom. Ritz v. Gagan, 513 U.S. 1183, 115 S.Ct. 1175, 130 L.Ed.2d 1128 (1995). Because the district court denied a Rule 12(b)(6) motion to dismiss, we confine our review to the allegations set forth in the complaint, accept all well-pleaded allegations in the complaint as true, and draw all reasonable inferences in Plaintiff's favor. See Gagan, 35 F.3d at 1475.

The concept of legislative immunity is well established in this circuit, see, e.g., Fry v. Board of County Comm'rs, 7 F.3d 936, 942 (10th Cir.1993), and the Supreme Court recently confirmed that, like their federal, state, and regional counterparts, "[l]ocal legislators are entitled to absolute immunity from § 1983 liability for their legislative activities." Bogan v. Scott-Harris, --- U.S. ----, ----, 118 S.Ct. 966, 972, 140 L.Ed.2d 79 (1998); see also U.S. Const. art. 1, § 6 (Speech or Debate Clause); Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 404-05, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) (extending immunity rule to regional legislators); Tenney v. Brandhove, 341 U.S. 367, 378-79, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (holding that state legislators were absolutely privileged in their legislative acts). The Supreme Court, however, "has been careful not to extend the scope of [legislative immunity] protection further than its purposes require," Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988), and the government official seeking immunity bears the burden of showing that an exemption from personal liability is justified. See id. Legislative immunity thus extends to legislators only when they are acting "in the sphere of legitimate legislative activity." Tenney, 341 U.S. at 376, 71 S.Ct. 783.

In order to determine whether Defendants should be cloaked in legislative immunity, we look to the function that the Board members were performing when the actions at issue took place, see Forrester, 484 U.S. at 224, 108 S.Ct. 538, and we examine the nature of those actions. See Bogan, 523 U.S. at ----, 118 S.Ct. at 973 ("Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it."); see also Cinevision Corp. v. City of Burbank, 745 F.2d 560, 579 (9th Cir.1984) ("The critical concern in our inquiry [is] the nature of the action on which the vote was taken."), cert. denied, 471 U.S. 1054, 105 S.Ct. 2115, 85 L.Ed.2d 480 (1985). " 'The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct.' " Cinevision, 745 F.2d at 580 (quoting Yakus v. United States, 321 U.S. 414, 424, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (holding that Emergency Price Control Act of 1942 did not unconstitutionally delegate the legislative power of Congress)); see also Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908) ("Legislation ... looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power."). Further, legislative actions must be done " 'in relation to the business before' " the legislative body. Powell v. McCormack, 395 U.S. 486, 502, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (quoting Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881)); see also Fry, 7 F.3d at 942 (upholding district court finding that " 'the legislative process was at work' " in the challenged action). Thus, the Supreme Court has instructed us, in admittedly differing contexts, that, at its core, the legislative function involves determining, formulating, and making policy.

We are not persuaded by the approach taken by some of our sister circuits in determining legislative capacity or function. These courts rest their analysis on the number of persons affected by a legislative body's decision. See Ryan v. Burlington County, N.J., 889 F.2d 1286, 1291 (3d Cir.1989) ( "Where the decision affects a small number or a single individual, the legislative power is not implicated, and the act takes on the nature of administration."); Haskell v. Washington Township, 864 F.2d 1266, 1278 (6th Cir.1988) (noting, in the context of a zoning action, that if " 'the action single[s] out specifiable individuals and affect[s] them differently from others, it is administrative' " (citations omitted)). But see Acierno v. Cloutier, 40 F.3d 597, 610 (3d Cir.1994) (stating that numbers inquiry in Ryan is not conclusive test for determining what is legislative or administrative). Other courts have limited immunity to functions involving legislative speech and debate, voting, preparing committee reports, conducting committee hearings, and other "integral steps in the legislative process." Bogan, 523 U.S. at ----, 118 S.Ct. at 973; see, e.g., Hansen v. Bennett, 948 F.2d 397, 402 (7th Cir.1991), cert. denied, 504 U.S. 910, 112 S.Ct. 1939, 118 L.Ed.2d 545 (1992).

Not all actions taken at a legislative meeting by a local legislator are legislative for purposes of immunity. See Roberson v. Mullins, 29 F.3d 132, 134 (4th Cir.1994); accord Brown v. Griesenauer, 970 F.2d 431, 437 (8th Cir.1992) (holding that impeachment proceedings are essentially judicial or adjudicatory in nature despite legislative decision-making body and form of proceedings); Hansen, 948 F.2d at 402-03 (holding that mayor was not acting in a legislative capacity when he restored order and regulated discussions at a public meeting); Cinevision, 745 F.2d at 580 (holding that city councilperson's vote to disapprove plaintiff's proposed concerts at city amphitheater was an executive, not a legislative act); Detz v. Hoover, 539 F.Supp. 532, 534 (E.D.Pa.1982) (holding that a municipality's employment decisions are "essentially administrative in nature" (emphasis omitted)). Nor does voting on an issue, in and of itself, determine that the act is legislative in nature. See Smith v. Lomax, 45 F.3d 402, 406 (11th Cir.1995); Roberson, 29 F.3d at 134 n. 3; Cinevision, 745 F.2d at 580. "Whether actions ... are, in law and fact, an exercise of legislative power depends not on their form but upon 'whether they contain matter which is properly to be regarded as legislative in its character and effect.' " INS v. Chadha, 462 U.S. 919, 952, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (citation omitted); accord Roberson, 29 F.3d at 135; Chicago Miracle Temple Church, Inc. v. Fox, 901 F.Supp. 1333, 1343-44 (N.D.Ill.1995).

At issue here is not the Board's ejection of Plaintiff from the public meeting but its vote to ban Plaintiff from all future Commission meetings and its subsequent decision to prohibit Plaintiff from participating in or speaking before the Board at Curry County Commission meetings. ³ After considering the function and character of the Board's actions, we conclude that its ban of Plaintiff from attending...