Shultz v. Sundberg

• Decision Date: 13 January 1984
• Docket Number: No. A83-303 CIV.,A83-303 CIV.
• Citation: 577 F. Supp. 1491
• Parties: Richard ("Dick") SHULTZ, Plaintiff, v. Robert SUNDBERG, James ("Jim") Vaden, Lawrence ("Larry") Mix, Jalmar ("Jay") Kerttula, William ("Bill") Sheffield, Norman ("Norm") Gorsuch and Daniel W. ("Dan") Hickey, Defendants.
• Court: U.S. District Court — District of Alaska

577 F. Supp. 1491

Richard ("Dick") SHULTZ, Plaintiff, v. Robert SUNDBERG, James ("Jim") Vaden, Lawrence ("Larry") Mix, Jalmar ("Jay") Kerttula, William ("Bill") Sheffield, Norman ("Norm") Gorsuch and Daniel W. ("Dan") Hickey, Defendants.

No. A83-303 CIV.

United States District Court, D. Alaska.

January 13, 1984.

COPYRIGHT MATERIAL OMITTED

Edgar Paul Boyko, Boyko, Davis & Dennis, Anchorage, Alaska, for plaintiff.

Jonathan K. Tillinghast, Birch, Horton, Bittner, Pestinger & Anderson, Susan A. Burke, Gross & Burke, Juneau, Alaska, George N. Hayes, Delaney, Wiles, Hayes, Reitman & Brubaker, Anchorage, Alaska, for defendants.

MEMORANDUM AND ORDER

VON DER HEYDT, Chief Judge.

THIS CAUSE comes before the court on defendants' motions to dismiss and for summary judgment. The court heard oral argument on December 2, 1983.

I. Procedural Background.

Defendant Senator Jalmar Kerttula moved to dismiss plaintiff's complaint or, alternatively, for summary judgment on July 19, 1983 (Docket # 10). The then remaining defendants, Vaden, Mix and Sundberg (the DPS defendants), made similar motions on July 29, 1983 (Docket # 12). Plaintiffs amended their complaint on August 16, 1983 to add defendants William Sheffield, Governor of the State of Alaska, Norman Gorsuch and Daniel Hickey (the Executive defendants) and to add allegations of fact related to the § 1985(3) claim. Defendant Kerttula and the DPS defendants renewed their motions to dismiss and for summary judgments. The Executive defendants joined in the renewed motions. The plaintiffs have filed an opposition to the initial and renewed motions.¹

II. Factual Background.

This action involves claims by a member of the Alaska State House of Representatives for damages allegedly suffered when he was compelled to attend a joint session of the Alaska State Legislature convened for the purpose of considering the Governor's nominees for various state cabinet positions. Governor Sheffield called for a joint session of the Alaska Legislature on June 3, 1983 following efforts by the Alaska House of Representatives to adjourn without acting on the Governor's nominees. The joint session, convened on June 7, 1983, was adjourned until 10:00 AM June 8 for want of a quorum. Prior to reconvening the joint session the defendants discussed the enforceability of an order issued by the Governor to compel attendance at the joint session. Upon reconvening, Senate President Kerttula signed an order compelling the attendance of absent members and directing the Sergeant-at-Arms to obtain the assistance of the DPS in compelling the attendance of absent legislators. After a minimum show of force, which may have included touching, the plaintiff attended. A quorum was determined to be present and the Governor's nominees were considered and approved. The amended complaint alleges violations of plaintiff's civil rights under color of state law, 42 U.S.C. § 1983, a conspiracy to violate plaintiff's civil rights, in violation of 42 U.S.C. § 1985(3), and for common law torts of assault and battery, false arrest and false imprisonment.

III. Defendant Kerttula's Motion to Dismiss for Failure to State a Claim or, Alternatively, for Summary Judgment.

a. Preliminary Issues

Because the court has considered matters, including an affidavit submitted by the plaintiff, outside the pleadings the motion shall be treated in the alternative proposed by defendant Kerttula as one for summary judgment. It is abundantly evident from the plaintiff's ninety-four page opposition and the hundreds of pages of affidavits and other evidentiary materials submitted that plaintiff has had a reasonable opportunity to present materials pertinent to a motion for summary judgment.

b. Absolute Immunity for Acts Within the Legitimate Sphere of Legislative Activity

This court will affirm a grant of summary judgment "only if it appears from the record, after viewing all evidence and factual inferences in the light most favorable to the appellant, that there are no genuine issues of material fact and that appellee is entitled to prevail as a matter of law." International Ladies Garment Workers Union v. Sureck, 681 F.2d 624, 629 (9th Cir.1982) (citations omitted). The moving party has the burden of showing that no genuine issue of material fact exists. Ron Tonkin Gran Turismo, Inc. v. Fiat Distributors, Inc., 637 F.2d 1376, 1381 (9th Cir.), cert. denied, 454 U.S. 831, 102 S.Ct. 128, 70 L.Ed.2d 109 (1981). After such a showing, the adverse party "may not rest upon the mere allegations or denials of his pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Proc. 56(e); Turner v. Local Union No. 302, Int'l Brotherhood of Teamsters, 604 F.2d 1219, 1228 (9th Cir.1979).

State legislators enjoy absolute immunity from suits for damages by individuals alleging violations of 42 U.S.C. § 1983 when their conduct occurs in a field where legislators traditionally have the power to act. Tenny v. Brandhove, 341 U.S. 367, 379, 71 S.Ct. 783, 789-90, 95 L.Ed. 1019 (1951).

The test generally posed for proposed immunity is whether the activity took place in a session of the House by one of its members in relation to the business before it. See Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1880); Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975). In Eastland, the Supreme Court stated:

More specifically, we must determine whether the activities are `an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.

421 U.S. at 504, 95 S.Ct. at 1821-22, quoting Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972).

One of the policies underlying absolute legislative immunity is to remove from legislators engaged in legitimate legislative activity the burden of defending themselves from law suits. Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 1427-28, 18 L.Ed.2d 577 (1967). Accordingly, where the undisputed facts are sufficient to establish that a legislator's actions occurred within the sphere of legitimate legislative activity, summary judgment is appropriate. See Dombrowski v. Burbank, 358 F.2d 821, 824-26 (D.C.Cir.1966), affirmed in pertinent part sub nom. Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967).

The court finds no genuine issues with respect to the following facts:

1. The Alaska Constitution, Art. III, § 17 provides: "Whenever the governor considers it in the public interest, he may convene the legislature, either house, or the two houses in joint session."

2. On June 3, 1983 by proclamation and citation to the section of the Alaska Constitution set out above, Governor Sheffield called a joint session of the Alaska Senate and House of Representatives. Pl.'s 2nd Opp, Ex. 15.

3. At 10:10 a.m. on June 8, Senate President Kerttula issued an order that certain absent members attend a joint session of the Alaska Legislature "now reconvened." Kerttula further ordered the Sergeant-at-Arms to obtain assistance from the Department of Public Safety to secure the absent members' attendance. Defendant Kerttula Memorandum, Ex. A.

4. The Speaker of the House was not present at the joint session in which Kerttula ordered absent members to attend. Kerttula's Reply Mem, at 7 n. 7.

5. Defendants Mix and Vaden² acting under the supervision of defendant Sundberg and upon the order of defendant Kerttula went to the plaintiff's office on June 8. Plaintiff was taken by the arm and escorted out of his office. Defendants conducted themselves "as gentlemen" in compelling the plaintiff to leave his office and attend the joint session. Affidavit of Mix, Affidavit of Holmes, ¶¶ 5, 7.

On the basis of these undisputed facts, the court concludes that defendant Kerttula's action in ordering the attendance of absent House members lies within the sphere of legitimate legislative activity and, accordingly, this defendant is entitled to absolute immunity from civil suit. Defendant Kerttula's action took place on the floor of the Senate in an effort to convene a joint session. The business before the Legislature, a confirmation vote on the Governor's proposed appointees, was clearly legislative in nature. Moreover, an act to compel the attendance of other legislators at a legislative session is an integral legislative function. Cf. Eastland, 421 U.S. at 505, 95 S.Ct. at 1822 (power to investigate using compulsory power of subpoena process is legitimate legislative activity); Keefe v. Roberts, 116 N.H. 195, 199, 355 A.2d 824, 827 (1976) (acts of securing quorum by compelled attendance is part of legislative process).

The court notes that challenges to the constitutionality of this defendant's actions have been raised. Questions whether the Senate President can act as the presiding officer of a joint session of the Alaska Legislature in the absence of the Speaker of the House's presence and whether, in a bicameral legislature, one house may propound orders upon the other or whether the Governor may convene a joint session at all may raise significant state issues but have no bearing on Kerttula's acts once it is determined that the acts are within the sphere of legitimate legislative activity. See Doe v. McMillan, 412 U.S. 306, 312-13, 93 S.Ct. 2018, 2024-25, 36 L.Ed.2d 912 (1973) (inclusion by Members of Congress of names of children investigated may be unconstitutional and yet lie within legislative sphere).

Plaintiff also asserts that the presence of genuine issues of material fact precludes summary judgment in Kerttula's favor. The facts assertedly at issue, however, are not material to the question of Kerttula's immunity. Whether Kerttula was...