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November 14, 1983


The opinion of the court was delivered by: Getzendanner, District Judge.


This action under 42 U.S.C. § 1983 is before the court on the motion for summary judgment of all defendants except the Village of Mokena ("defendants"). No affidavits and depositions are referred to in the parties' memoranda. Defendants' motion for summary judgment assumes as true the facts as alleged in the Amended Complaint. Those facts are briefly as follows.

Plaintiff John Coffey is a former police sergeant of the Village of Mokena. Defendants are Mokena's President, Richard Quinn, and its Trustees. Coffey claims that Quinn and the Trustees voted on June 22, 1981 to terminate his employment with Mokena. Quinn thereafter had delivered to Coffey a letter that announced this termination. Coffey alleges that his termination was in retaliation for his exercising his first amendment rights in participating in the Fraternal Order of Police Lodge of Mokena, Illinois.

In their motion for summary judgment, defendants argue simply that they are "immune from suit by reason of the exercise of their legislative responsibilities." (Motion for Summary Judgment.) Coffey counters that the action of Quinn and the Trustees in terminating his employment was an administrative, as opposed to legislative, act, triggering only the good faith, qualified immunities due administrative activity. Since the Amended Complaint alleges bad faith, Coffey continues, summary judgment on this issue is inappropriate at this stage.

In Reed v. City of Shorewood, 704 F.2d 943 (7th Cir. 1983), the Seventh Circuit held that local legislators have absolute individual immunity from § 1983 liability for their "legislative action[s]." Id. at 952. This decision, far from deciding the issue now before the court, only begins the inquiry. Immunity questions must be determined not by the labels of the officers whose acts are under scrutiny but by the nature of these acts. See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Hampton v. City of Chicago, 484 F.2d 602, 608, 609 (7th Cir. 1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974). In this case, Quinn and the Trustees are alleged to have wrongfully terminated Coffey. The court must determine whether this action is legislative or administrative (or executive) in nature.

Reed does not solve this problem, for that case involved local legislators' enactment of an ordinance reducing the number of Class A liquor licenses in the Village of Shorewood from four to three, clearly a legislative act. Courts confronting this issue have formed guidelines for determining whether an act is legislative or administrative. In Barbaccia v. County of Santa Clara, 451 F. Supp. 260 (N.D.Cal. 1978), defendant city council members, sued for their participation in zoning decisions regarding plaintiff's land, claimed immunity for their legislative acts. The court explained, however, that

  the actions set forth in the complaint do not
  involve the promulgation of legislation of a
  general or prospective nature, rather, they
  depict discretionary determinations with respect
  to a single parcel of land.

Id. at 267 (concluding such decisions merit qualified immunity). Consistent with this description of a legislative act is the test outlined by the court in Three Rivers Cablevision v. City of Pittsburgh, 502 F. Supp. 1118 (W.D.Pa. 1980). There, plaintiff bidder for a city cable television contract claimed the city council's failure to award him the contract violated his civil rights. The municipal city council defendants asserted absolute legislative immunity as a defense to plaintiff's action, while plaintiff asserted the council acted in an administrative or executive capacity. The court first noted that the act in question was "the adoption by council of the resolution authorizing the award of the contract to Warner [not the plaintiff]." Id. at 1135. The court then explained that

  Legislative acts are said to be broad, general
  policy statements establishing guidelines by
  which the future conduct of an entire group of
  persons falling within a particular
  classification will be judged. [Citation
  omitted.] By contrast, executive or
  administrative acts in this context generally
  consist of the application of legislation to
  specific situations. [Citation omitted.]
  Thus, . . . while an amendment of a local zoning
  provision having application to all property
  within a certain district was a legislative act,
  the denial of a variance under that legislation
  to a particular individual was an administrative
  act. Likewise, the Supreme Court recently held
  that the promulgation of ethical rules by a state
  supreme court was a legislative act, whereas the
  enforcement of those rules by the court was not
  legislative and thus could not be defended on the
  basis of immunity.

  Supreme Court of Virginia v. Consumers Union,
  446 U.S. 719 [100 S.Ct. 1967, 64 L.Ed.2d 641] . . .

Id. at 1136. Given this standard, the court held that the council's action was not legislative, regardless of the fact that it was accomplished by "resolution," involving as it did the application to a specific situation of broad policies already enunciated. Id.*fn1 Finally, in Adler v. Lynch, 415 F. Supp. 705 (D.Neb. 1976), plaintiff complained that local officials, among whose duties included the enactment of local ordinances, violated her constitutional rights by their decisions with respect to her zoning variance. The court held that their actions in determining the merits of plaintiff's case were

  distinguishable from the type of judgment and
  discretion exercised by judges and legislators
  who enjoy absolute immunity under § 1983 because
  they must conceive public policy from the myriad
  policy options open to the sovereign [citations
  omitted] and similar in significant respects to the
  type of discretion exercised by executive officials
  who have a more limited jurisdiction, and, must
  confine their discretion to matters which are more
  or less specifically defined within the state's
  public policy.

Id. at 712.

Many cases exist in which local legislators apply already enacted ordinances or already recognized policies to specific instances. The court is aware of few cases involving facts similar to those now before it. Defendants claim that Goldberg v. Village of Spring Valley, 538 F. Supp. 646 (S.D.N.Y. 1982), is such a case that supports its argument that Coffey's discharge was legislative in character. A close reading of the case reveals that it did not decide whether a termination was legislative or administrative. In Goldberg, plaintiff Irving Goldberg was an Assistant Village Attorney for the Village of Spring Valley and plaintiffs Stuart Goldberg and Hyman Cohen were employed by the Spring Valley Urban Renewal Agency ("SVURA"). A new village administration, which all three plaintiffs had opposed, was elected. The new mayor, with the approval of his board of trustees, terminated Irving Goldberg from his position. In addition, the board of trustees authorized the transfer of all SVURA funds to the village, thereby eliminating the positions held by Cohen and Stuart Goldberg. The board of trustees moved to dismiss the allegations against them, claiming legislative immunity. The mayor did not so move, hence the application of immunity to his action in terminating Irving Goldberg was not before the court. The acts of the trustees complained of were "the creation of the Department of Housing and Community Development, the transfer of the funds and programs of [SVURA to the village], and the approval of the appointments of individuals to positions that performed the duties previously performed by plaintiffs." Id. at 650. The court held these actions to be clearly legislative, as "reflecting policy objectives." Id. The dismissals in question were actually those necessitated by program funding changes.

Another dismissal case, Wells v. Hutchinson, 499 F. Supp. 174 (E.D.Tex. 1980), held that a defendant's actions in terminating plaintiff's employment was legislative. Id. at 185 n. 7. There, plaintiff's termination was caused by a loss of funding for the program in which he was employed, not through a simple firing, and hence, as ...

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