Johnson and Bell
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Fall 2011



Eydie R. Glassman

Legislators, while engaging in acts that are legislative in character, are entitled to absolute immunity for their actions, pursuant to the federal doctrine of legislative immunity.  The doctrine, originally afforded only to state legislators, was eventually extended to municipal legislatures in the matter of Tenny v. Brandhove, 341 U.S. 367 (1951).

The voting on and passing of budgets or budget ordinances for example, is considered legislative in nature, and legislators therefore, are entitled to absolute legislative immunity based on the nature of the activity itself, without question to any underlying motive or intent. The immunity arose and has flourished, out of concerns that withholding absolute immunity would deter local legislators from public service. The irony however, is that a municipal entity may ultimately be deemed solely liable for an intentional and unconstitutional act of its legislature, while the legislators themselves are deemed absolutely immune from suit.

The Seventh Circuit, in Rateree v. Rockett et. al., 852 F.2d 946 (7th Cir. 1988), addressed the issue of legislative immunity in a matter where five city employees who lost their jobs after not being funded in a new budget claimed they were harassed and ultimately terminated in retaliation for their support for the newly elected mayor and city commissioner. The plaintiffs’ jobs were eliminated from the city budget, pursuant to budget ordinances passed by the city's aldermen in their legislative capacities and none of their acts were executive or administrative in nature. Had they been, their actions would have been governed by the doctrine of qualified and not absolute immunity. 

The defendant city and four of its aldermen brought motions to dismiss the claim, asserting absolute legislative immunity from the suit under 42 U.S.C. § 1983, which was granted on behalf of the aldermen, but not the municipality itself. The court, in granting the individual defendants' motion, noted that legislative immunity does not sanitize legislators’ motives. Rather, it makes them irrelevant on the ground that courts are not to probe them at all.

The court, in denying the municipalities’ motion, noted that municipalities enjoy no Section 1983 immunity and that policies supporting absolute or good faith personal immunity do not apply. The court further asserted, and both sides agreed, that municipalities can only act through their agents or employees and that the matter of Monell v. Department of Social Services, 436 U.S. 658 (1978) provides the test for municipal liability under Section 1983. 

While the Monell test was not fully outlined by the Rateree court, it ultimately concluded, based on Monell, that " a local government may not be sued under Section 1983 for an injury inflicted solely by its employee or its agents. Instead, it is when [the] execution of a government's policy or custom, whether made by its lawmakers or by those who edits or acts may fairly be said to represent official policy, inflicts the injury, that the government as an entity is responsible under Section 1983."

This analysis was reaffirmed in more detail by the U.S. Supreme Court in the case of Bogan v. Scott-Harris, 523 U.S. 44 (1998). There, the mayor and city council eliminated Bogan's department and position and Bogan alleged that her termination arose from a racial animus towards Bogan and in retaliation for her having exercised her First Amendment rights.

The court held that the council's voting on a city ordinance and the mayor's signing of the ordinance into law, were inherently legislative acts, despite the fact that the ordinance targeted only Bogan.

Although the individual councilmen were entitled to absolute immunity however, the court analyzed whether a suit could still be successfully brought against the defendant municipality, should it be deemed that the individual defendants were policymakers.

The discussion began with the Bogan court asserted the holding of Monell, and the Monell court's conclusion that a municipality is a “person” amendable to suit under § 1983 although its liability could not be based on a principal of respondent superiorMonell, 436 U.S. at 690-91.

A municipality could be held liable however “when execution of [the municipalities'] policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy and are the moving force (or cause) of the Constitutional violation.”  Monell, 436 U.S. at 694 (emphasis added).

In other words, when a lawmaker or policy maker, while performing legislative acts, inflicts an unconstitutional injury, via the execution of an unconstitutional government policy or custom, the municipality is deemed ultimately responsible under § 1983 and its lawmakers and/or policy makers are not.

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