black church from Chicago and that West also informed Trustee Eisha that an offer by a church from Chicago had been made on the property. Id. PP 12, 13.
Finally, as part of the church's settlement with the private defendants, the church contracted to purchase the property for $ 200,000. Defs.' Facts P 31. The village contends that the church never obtained financing to purchase the property because an underground storage tank was found on the property. Defs.' Facts P 31. The village also maintains that the church has indicated that it would not purchase the property until the issue of the underground storage tank is resolved by the Lansing Bible Church. Defs.' Facts P 31; Anderson Dep. at 82-83, 140-144. The church responds by stating that it has reserved a decision on whether to purchase the property until the underground storage tank has been investigated and also because of continued harassment and threats from unknown parties. Pls.' Facts P 16; Bell Aff. P 5.
Summary Judgment Standards
Summary judgment is proper only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view all evidence in a light most favorable to the nonmoving party, Valley Liquors, Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977, 98 L. Ed. 2d 486, 108 S. Ct. 488 (1987), and draw all inferences in the nonmovant's favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir. 1990). However, if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50; Flip Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th Cir.), cert. denied, 488 U.S. 909, 102 L. Ed. 2d 249, 109 S. Ct. 261, (1988). In making its determination, the court's sole function is to determine whether sufficient evidence exists to support a verdict in the nonmovant's favor. Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge when deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255. With these standards in mind, we address the defendants' motion for summary judgment.
Count III: § 1983
Plaintiffs seek recovery under the Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging that defendants, under the color of state law, violated their equal protection rights to be free from discriminatory state action by acting with a discriminatory intent to prevent plaintiffs from purchasing property located in the village.
Compl. PP 32-33.
Absolute and Qualified Immunity
Before delving into the merits of plaintiffs' § 1983 claims, we consider defendants' claims to immunity from suit. The defendants claim that West and the trustees are absolutely immune from damage suits under § 1983 because they were acting in their legislative capacities when they acted to approve an offer by the village to purchase the Lansing Bible Church property. Thus, the individual defendants claim to enjoy absolute legislative immunity under Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 402-06, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979) (holding that individuals acting in a legislative capacity at a regional level are entitled to absolute immunity) and Tenney v. Brandhove, 341 U.S. 367, 376, 95 L. Ed. 1019, 71 S. Ct. 783 (1951) (holding that state legislators are absolutely from suit under § 1983 for actions "in the sphere of legitimate legislative activity").
Although § 1983 does not on its face admit a defense of official immunity, the Supreme Court has held that "Congress did not intend § 1983 to abrogate immunities 'well grounded in history and reason.'" Buckley v. Fitzsimmons, 125 L. Ed. 2d 209, 113 S. Ct. 2606, 2613 (1993) (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 95 L. Ed. 1019, 71 S. Ct. 783 (1951)). Since Tenney, the Supreme Court has recognized both absolute and qualified immunity under § 1983. Id. We address defendants' entitlement to these two types of immunity in turn.
1. Absolute Immunity
The key inquiry when determining whether defendants are entitled to legislative immunity is whether the defendants' actions were taken in their "legislative capacity." Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir. 1988). "Administrative or executive acts of legislators are not protected." Id. Rateree teaches that we are to take a functional approach to resolving questions of absolute immunity: "'We look to the function the individual performs rather than his location within a particular branch of government.'" Id. at 951 (quoting Aitchison v. Raffiani, 708 F.2d 96, 99 (3d Cir. 1983); see also Buckley, 113 S. Ct. at 2613 ("In determining whether particular actions of government officials fit within a common-law tradition of absolute immunity . . . we have applied a 'functional approach' which looks to 'the nature of the function performed, not the identity of the actor who performed it.'") (quoting Burns v. Reed, 500 U.S. 478, 111 S. Ct. 1934, 1939, 114 L. Ed. 2d 547 (1991)); Hansen v. Bennett, 948 F.2d 397, 401 (7th Cir. 1991) (noting that absolute legislative immunity is not available for activities "casually or incidentally related to legislative affairs but not a part of the legislative process itself"), cert. denied, 504 U.S. 910, 112 S. Ct. 1939, 118 L. Ed. 2d 545 (1992). As the Seventh Circuit noted in Rateree, and as the instant case illustrates, line drawing between legislative acts on the one hand and administrative or ministerial acts on the other is often difficult. It is the burden of the officials invoking immunity to establish their entitlement to it. Buckley, 113 S. Ct. at 2613; Walrath v. United States, 35 F.3d 277, 281 (7th Cir. 1994); Rateree, 852 F.2d at 950.
To be clear, the question we confront here, is whether the individually named defendants were acting in a legislative capacity when they voted to authorize the mayor to send a letter of intent offering $ 260,000 for the subject property, contingent upon a certified appraisal and a bond counsel opinion.
Both sides to this dispute draw on language neatly excerpted from various cases dealing with absolute immunity. Unfortunately, none of the cases bear even a remote similarity to the facts we confront here and the excerpted language does not take us particularly far. For their part, the defendants simply cite cases expressing the broad proposition that legislators are absolutely immune for actions taken in their legislative capacity. See Defs.' Mem. at 11 (citing Lake Country Estates, 440 U.S. 391, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979) (regional planning authority members entitled to legislative immunity with respect to passage of land-use ordinance); Aitchison, 708 F.2d 96 (3d Cir. 1983) (mayor and borough attorney entitled to absolute legislative immunity with respect to decision to eliminate position of assistant building inspector); Rateree, 852 F.2d 946 (7th Cir. 1988) (city commissioners entitled to absolute legislative immunity for eliminating appropriations from city budget that resulted in loss of plaintiffs' jobs-allegedly for political reasons); Reed, 704 F.2d 943 (7th Cir. 1983) (local liquor control commissioner entitled to absolute judicial immunity when passing on liquor license renewal and revocation questions). Unfortunately, defendants make little effort-beyond conclusory assertion-to reason why the board's act of authorizing the purchase offer at issue in this lawsuit falls within the scope of the holdings of these other cases or otherwise constitutes a legislative act.
Similarly, the plaintiffs invoke a number of equally inapposite cases (predominantly involving zoning-related decisions) from other circuits suggesting that when a legislative body takes an action directed at a particular individual or applies policy to a specific party-rather than establishing a general policy or prospective rule-it acts in an administrative or executive capacity rather than a legislative capacity. That, plaintiffs contend, is precisely what the board did in the instant case and hence they have no claim to legislative immunity. For the reasons that follow, we agree.
The Seventh Circuit has provided little guidance on applying the so-called functional approach to absolute legislative immunity; so, we shall begin our analysis by reference to guidance from the Supreme Court and the approaches of the other federal circuit courts. In a context not involving legislative immunity, the Supreme Court observed that "the essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct." Yakus v. United States, 321 U.S. 414, 424, 88 L. Ed. 834, 64 S. Ct. 660 (1944) (holding that the Emergency Price Control Act of 1942 did not unconstitutionally delegate the legislative power of Congress to the Office of Price Administration). Similarly, in Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 53 L. Ed. 150, 29 S. Ct. 67 (1908), the Court observed, "legislation . . . looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power." Although voiced in different contexts, these statements are nonetheless instructive as to the meaning to be given to the expression "legislative capacity." Yakus and Prentis teach that at its core the legislative function involves determining, formulating, and making policy.
In accord with this proposition, several circuits have adopted approaches to analyzing claims of legislative immunity that, in one way or another, look to whether the defendant official was enacting or promulgating a policy or rule as opposed to simply enforcing, monitoring, or applying the policy. Thus, for example, in Cinevision Corp. v. City of Burbank, 745 F.2d 560 (9th Cir. 1984), cert. denied, 471 U.S. 1054, 85 L. Ed. 2d 480, 105 S. Ct. 2115 (1985), the Ninth Circuit held that a city council was not acting legislatively when it voted to disapprove certain proposed concerts for the city's amphitheater because the council was merely monitoring and enforcing its contract with the concert promoter. See also Zamsky v. Hansell, 933 F.2d 677, 679 (9th Cir. 1991) (holding that land use planning commission was not acting in a legislative capacity in requiring county to rezone certain property because that act involved "ad hoc decisionmaking" rather than "formulation of policy" such as would be involved in promulgating the state-wide planning standards).
Similarly, the Fourth Circuit recently reiterated its view that "a local governmental body only acts in a legislative capacity when it engages in the process of 'adopting prospective, legislative-type rules.'" Roberson v. Mullins, 29 F.3d 132, 135 (4th Cir. 1994) (quoting Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 865 F.2d 77, 79 (4th Cir. 1989). The Roberson court also noted that "every other court of appeals that has attempted to define when a local governmental body acts in a legislative capacity has set forth the same, or a very similar, standard." Id. (see cases cited therein).
The Third and Sixth Circuits also look to whether the challenged conduct involved policy-making decisions and additionally these circuits appear to also consider the scope of applicability of the rule or policy. Thus, for example, in Ryan v. Burlington County, N.J., 889 F.2d 1286 (3d Cir. 1989), the court remarked:
There are two requirements which an act must meet in order to be regarded as legislative for immunity purposes. First, the act must be "substantively" legislative, i.e., legislative in character. Legislative acts are those which involve policy-making decision of a general scope or, to put it another way, legislation involves line-drawing. Where the decision affects a small number or a single individual, the legislative power is not implicated, and the act takes on the nature of administration. In addition, the act must be "procedurally" legislative, that is, passed by means of established legislative procedures.