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In Scott-Harris v. City of Fall River, 118 S.Ct. 966 (March 3, 1998) the United States Supreme Court ruled for the first time that local lawmakers are immune from suit when they perform legislative acts. The Court reversed Scott-Harris v. City of Fall River, 134 F.3d 427 (1st Cir. 1997), a decision by the First Circuit Court of Appeals which had affirmed substantial damage awards against two local legislators.

Fall River began when a City employee brought a Section 1983 action against the City of Fall River and several City officials. (42 U.S.C.A. § 1983 is a federal statute which provides a cause of action for many people whose constitutional rights have been violated). The plaintiff, Janet Scott-Harris, alleged that her employment had been terminated in violation of her First Amendment Rights. Scott-Harris was hired by the City to be the Administrator of a newly created Department of Health and Human Services (herinafter "DHHS"). She became the first African-American ever to hold a managerial position in the City's government. By all accounts her performance as Administrator of DHHS was satisfactory. The underlying dispute stemmed from Scott-Harris' responses to allegedly racist comments made by a member of the City Council and a City employee.

Scott-Harris believed that Marilyn Roderick, a member of the City Council, had made inappropriate references to an African-American's ethnicity during an employment interview. Scott -Harris had a shouting match with Roderick and stormed out of the room. Later efforts at reconciliation by Scott-Harris were rebuffed by Roderick. The second incident concerned the activities of a City employee, Dorothy Biltcliffe.

Biltcliffe was employed by the City as a nutrition program assistant. Biltcliffe had apparently called a secretary a racial name and had referred to Scott-Harris in racial terms. As Biltcliffe worked under Scott-Harris' general supervision, she drew up charges against Biltcliffe as a prelude to dismissal. During the pendency of these charges, Biltcliffe used the N word on Scott-Harris and warned that there would be repercussions because Biltcliffe "knew people." 134 F.3d at 431. Biltcliffe was ultimately suspended for 60 days without pay, although Mayor Daniel Bogan later reduced the punishment substantially.

During Scott-Harris' dispute with Biltcliffe, the City's financial outlook worsened substantially as state aid was scheduled to decline by approximately ten percent. Mayor Bogan directed the City Administrator, Robert Connors, to prepared a list of proposed budget cuts. Connor's list did not include the termination of Scott-Harris. Over Connors' objection, Mayor Bogan insisted that Scott-Harris' position be eliminated. Mayor Bogan then introduced a budget to the City Council which eliminated the position of Administrator of DHHS, Scott-Harris' job. The budget passed the City Council by a vote of six to two, with Roderick voting in its favor. Mayor Bogan signed the ordinance into law. Scott-Harris then sued the City, Roderick, Bogan and several other City employees, lawmakers and administrators. All of the defendants except Roderick, Bogan and the City were either dismissed from the suit by the trial court or dropped from the suit by the plaintiff.

Roderick and Bogan stated that Scott-Harris' position was eliminated because of budgetary concerns, and argued that in any event they were protected by legislative immunity. The City argued that it could not be held liable because there was no proof that any Council Members other than Roderick had an impermissible motive when they voted on the ordinance. The jury found that Scott-Harris was terminated because of her constitutionally protected speech, and awarded damages jointly and severally in the amount of $156,000 against Bogan, Roderick and the City and a further $60,000 in punitive damages against Bogan and $15,000 against Roderick. All of the defendants appealed.

The Court of Appeals absolved the City of liability, holding that evidence of bad motive on the part of only one member of the City Council could not be imputed to the City in the absence of some evidence of illegal intent on the part of other members of the Council. The Court of Appeals then decided the issue of legislative immunity.

The court recognized that local lawmakers were entitled to legislative immunity even though the Supreme Court had never explicitly addressed the issue. However, the court stated that legislators are only entitled to immunity when they perform legislative acts and are not immune when they perform administrative acts. The court stated that two tests had been developed in order to separate administrative from legislative acts. The first test focuses on the nature of the facts used to reach a decision. If the facts used to reach a decision are generalized, then the decision is legislative, but if the facts relate to particular individuals then the decision is administrative. The second test focuses on the impact of the state action. If the action has a generalized impact upon the public, it is legislative, but if the action "singles out specifiable individuals and affects them differently from others" it is deemed administrative. 134 F.3d at 440. The court stated that when the relevant facts are in dispute the question of whether a particular act is legislative should not be decided before trial. The court found that the jury had made two findings which indicated that the defendants' acts were not legislative: that the defendants' stated reason (budgetary constraints) for enacting the position elimination ordinance was not their real reason and that the plaintiff's exercise of her constitutionally protected speech was the real reason for her termination. The court ruled that the verdict supported the trial court judge's conclusion that the defendants were not performing legislative acts when they terminated Scott-Harris, and affirmed the judgments against Roderick and Bogan. The Supreme Court granted certiorari.

The Supreme Court began its opinion by deciding for the first time that local legislators are entitled to legislative immunity. The Court reasoned that "the threat of liability may significantly deter service in local government, where prestige and pecuniary awards may pale in comparison to the threat of civil liability." 118 S.Ct. at 973. The Court then addressed the issue of whether or not the defendants' acts were legislative.

The Court stated that the First Circuit's tests for determining whether or not an act is legislative were flawed because the "Court of Appeals erroneously relied on petitioners' subjective intent in resolving the logically prior question of whether their acts were legislative." Id. at 974. The Court ruled that "whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it." Id. at 974. This test puts form before function: if the act is in form legislative, then the person performing the act will be given immunity, regardless of the function of the legislative act. The Court justified its holding by reasoning that "the privilege of absolute immunity would be of little value if legislators could be subjected to the cost, inconvenience and distractions of a trial upon the conclusions of a pleader." Id. at 974. Legislative immunity is designed to protect legislators from the burden of having to explain their actions in court, and not simply to shield them from liability. The Court then applied the test to the actions of Bogan and Roderick.

The Court stated that the ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities of the City. The Court noted that the ordinance terminated a position, which was unlike the hiring or firing of a particular employee as it had implications beyond any particular occupant of the office. The Court ruled that Council Member Roderick's "acts of voting for an ordinance" were quintessentially legislative. Id. at 973. Mayor Bogan's acts of introducing a budget and signing into law an ordinance were also deemed legislative. The Court stated that Mayor Bogan was entitled to immunity even though he was outside of the legislative branch because he was performing a legislative function. The Court held that both defendants were entitled to legislative immunity.

Harvey A. Schwartz, attorney for the plaintiff, stated that it is "an unfortunate decision" as "it exempts about 350,000 elected officials from civil rights statutes." The plaintiff had asked the Court to look beyond the defendants' formal actions in order to consider whether the ordinance was legislative in substance. Although the Court refused to look beyond the defendants' formal actions in Scott-Harris' case, it hinted that in some cases it might do just that.

The Court stated that "we need not determine whether the formally legislative character of petitioners' actions is alone sufficient to entitle petitioners to legislative immunity because here the ordinance, in substance, bore all the hallmarks of traditional legislation." Id. at 975. Charles Rothfeld, attorney for the defense, thought that this language probably had limited application. Rothfeld stated that in some localities one person exercises both legislative and administrative authority. In such a situation the Court might look beyond the formal character of the action.

It must be remembered that Fall River does not provide absolute immunity for local legislators in all circumstances. Fall River only provides immunity to people who perform legislative acts, such as the acts of voting on an ordinance or introducing legislation. In addition, local governments can still be sued for legislative acts which are performed by their legislators.

Although most courts had already held that local lawmakers are entitled to legislative immunity, the Supreme Court took the additional step of clarifying exactly when such immunity applies. Fall River provides considerable protection to local legislators. With few exceptions, those who perform legislative acts will not have to explain their motives in court.

BIBLIOGRAPHY

1. Associated Press, Localities' Lawmakers Shielded, Daily News-Record, Page 1

(March 4, 1998).

2. Scott-Harris v. City of Fall River, 134 F.3d 427 (First Circuit, January 15, 1997).

3. Scott-Harris v. City of Fall River, 118 S.Ct. 966 (March 3, 1998).

4. Telephone Interview with Charles Rothfeld, Esquire (April 7, 1998).

5. Telephone Interview with Harvey A. Schwartz, Esquire (April 7, 1998).