As published in The Agenda.
By: Thomas P. Scarritt, Jr. and Thomas S. Harmon
In Bogan v. Janet Scott-Harris,1 the Mayor and the City Council of Fall River, Massachusetts, passed a bill that eliminated the Department of Health and Human Services (DHHS), which was headed by Janet Scott-Harris, the first African American to work for the City. Janet Scott-Harris had been Fall River's first black administrator when she was hired in 1987 to head the DHHS. In 1990, Scott-Harris accused a long time City employee, Dorothy Biltcliffe, of repeatedly using racial slurs, including calling Scott-Harris a "black bitch."
In 1991, Mayor Daniel Bogan prepared his budget proposal for the 1992 fiscal year. Anticipating a 5 to 10 percent reduction in state aid, Bogan proposed freezing the salaries of all city employees and eliminating 135 city positions. As part of this package, Bogan called for the elimination of the DHHS, of which Janet Scott-Harris was the sole employee. The City Council Ordinance Committee, which was chaired by Marilyn Roderick, approved an ordinance eliminating DHHS. The city council thereafter adopted the ordinance by a vote of 6 to 2 and Mayor Bogan signed the ordinance into law, leaving Janet Scott-Harris without a job.
Invoking Section 1983 of the Federal Civil Rights law, Scott-Harris sued Bogan, Roderick and the City of Fall River in the U.S. District Court for Massachusetts. Scott-Harris claimed that the City and its officials eliminated her department solely in retaliation for her effort to fire Ms. Biltcliffe who was allegedly a politically well-connected employee.
The jury awarded Scott-Harris monetary damages against Bogan, Roderick and the City of Fall River. The United States First Circuit Court of Appeals overturned the award against the City but upheld the $231,000 judgment against Bogan and Roderick finding that Scott-Harris' constitutionally protected speech was "a substantial or motivating factor behind Bogan and Roderick's conduct."
On March 3, 1998, the United States Supreme Court unanimously reversed the First Circuit Court of Appeals thereby granting local legislatures absolute immunity from liability for their legislative activities.
Absolute Immunity for Local Lawmakers -- History and Reason
A government official may invoke one of two types of immunity from personal liability for damages: absolute or qualified immunity. The Supreme Court has adopted a "functional" approach to immunity, so that whether an official is entitled to absolute or qualified immunity will depend on the function performed by that official in a particular context.2 Under this approach, the court examines the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and then evaluates the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions. Officials who seek exemption from personal liability have the burden of showing that such an exemption is justified by overriding considerations of public policy. It is important to recognize that the court has recognized a category of "qualified" or "good faith" immunity that avoids unnecessarily extending the scope of absolute immunity.3
The legislative function is a major area in which absolute immunity exists. It must be emphasized, however, that absolute immunity exists for legislative tasks only. Legislators do not have absolute immunity for their non-legislative functions. In speaking of the immunity possessed by members of Congress, the Court remarked that for absolute immunity to exist the activity "must be an integral part of the deliberative and communicative process 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."4
The principle that legislators are absolutely immune from civil or criminal liability for their legislative activities has long been recognized in Anglo-American law. In fact, the privilege of legislatures to be free from arrest or civil process for what they do or say in legislative proceedings "has tap roots in the parliamentary struggles of the sixteenth and seventeenth centuries."5 Freedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation. It was deemed so essential for representatives of the people that it was written into the Articles of Confederation and later into the Constitution. Article V of the Articles of Confederation closely resembles the English Bill of Rights: "Freedom of speech and debate in congress shall not be impeached or questioned in any court or place out of congress. . . ." Similarly, Article I, subsection 6, of the Constitution provides: '. . . for any Speech or Debate in either House, (the Senators and Representatives) shall not be questioned in any other Place."
Article I, subsection 6 of the Federal Constitution is merely a reflection of political principles that were already firmly established in the States. Three state constitutions adopted before the Federal Constitution specifically protected the privilege of legislatures to be free from liability for their legislative activities. The Maryland Declaration of Rights, November 3, 1776, provided: "That freedom of speech and debates or proceedings in the Legislature, ought not be impeached in any other court or judicature." The Massachusetts Constitution of 1780 provided: "The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever." The Federal Constitution, the constitutions of many of the newly independent states, and the common law, thus protected legislatures from liability for their legislative activities.
Recognizing this tradition, the Supreme Court previously held that state and regional legislators are entitled to absolute immunity from liability for their legislative activities.6 Likewise, the Supreme Court has interpreted the federal speech and debate clause7 to provide similar immunity to members of congress.8 However, until now, the Supreme Court has never extended absolute immunity to the local lawmaker.
Quoting Justice Clarence Thomas, "absolute immunity for local legislators finds support not only in history, but also in reason." Indeed, the reason for extending the privilege is clear: "In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is necessary, that he or she should enjoy the fullest liberty of speech, and that he or she should be protected from the resentment of everyone, however powerful, to whom the exercise of that liberty may occasion offense."9 According to Justice Thomas, the rationale for according absolute immunity to federal, state, and regional legislators applies with equal force to local legislatures.
Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. The time and energy alone required to defend against a lawsuit are of particular concern at the local level, where governing bodies are commonly comprised of citizens who also have full-time jobs. The privilege of local legislators to be free from arrest or civil process for what they do or say in legislative proceedings is necessary in order to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecution.
Legislative Activities -- Nature of Act Or Motive?
Absolute legislative immunity attaches only to actions taken "in the sphere of legitimate legislative activity."10 Whether an act is legislative turns on the nature of the act, and not on the motive or intent of the official performing it. As previously stated, the Supreme Court remarked that for absolute immunity to exist, the activity "must be an integral part of the deliberative and communicative process 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 11."
In Bogan, the Supreme Court was left with the question whether, stripped of all considerations of intent and motive, the actions of Bogan, Roderick and the city council members were legislative. The Supreme Court concluded that they were. Bogan's introduction of a budget and signing into law an ordinance were integral steps in the legislative process. Roderick's act of voting for the ordinance was quintessentially legislative.
The court declined to look beyond Bogan and Roderick's formal actions in considering whether the ordinance was legislative. Justice Thomas stated, "we need not determine whether the formally legislative character of [Roderick and Bogan's] actions are alone sufficient to entitle them to legislative immunity, because the ordinance, in substance, bore all the hallmarks of traditional legislation. The ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities of the City and the services the City provides to its constituents. Moreover, it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office. The City Council, in eliminating the Department of Health and Human Services, governed in a field where legislatures traditionally have power to act."
The Bogan decision reflects an important extension of absolute legislative immunity never before formally recognized by the United States Supreme Court. It brings home to local legislators such as city commissioners and mayors the protection previously given to their state, regional and federal counterparts. Lawsuits inquiring into the motivation behind a city or town legislator's vote should now be promptly dismissed by trial courts in Florida and other states once the alleged offense is determined to be purely legislative.
1 Bogan v. Scott-Harris, ____ U.S. ____ (1998), 118 S.Ct. 966 (1998).
2 Forester v. White, 484 U.S. 219 (1998).
3 In Harlow v. Fitzgerald, 457 U.S. 731 (1982), the Supreme Court granted governmental officials performing discretionary functions immunity from liability for civil damages insofar as their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. This form of immunity is generally referred to as "qualified" or "good faith" immunity.
4 Gravel v. United States, 408 U.S. 606, 625 (1972).
5 Tenney v. Brandhove, 341 U.S. 367, 372 (1951).
6 Tenney v. Brandhove, 341 U.S. 367 (1951) (state legislatures); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979) (regional legislatures -- members of regional planning authority).
7 United States Constitution, Article I, subsection 6.
8 Kilbourn v. Thompson, 103 U.S. 168 (1881).
9 II Works of James Wilson, Andrews Ed. 1896.
10 Tenney v. Brandhove, 341 U.S. 367, 376 (1951).
11 Gravel v. United States, 408 U.S. 606, 625 (1972).