Downton v. Kirk Phone

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-1791
_____________
JACK DOWNTON; BRIGITTE D'AGATI;
PAUL EVERETT; LOUIS GURSKE;
ROBERT WELDY; PATRICIA SCHNEYER,
Appellants
v.
KIRK PHONE; ROBERT BUCK;
DONALD HAYNES, JR.; HELEN HAYNES;
ARTHUR M. KOPP; ANTHONY PALONIS; FRED RHONE;
DARL HAYNES; RONALD BUGAJ; STARRUCCA BOROUGH
_____________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-08-cv-01646)
District Judge: Honorable Edwin M. Kosik
_____________
Submitted Under Third Circuit LAR 34.1(a)
July 14, 2011
Before: RENDELL, SMITH and ROTH, Circuit Judges.
(Opinion Filed: August 1, 2011)
_____________
OPINION OF THE COURT
_____________
RENDELL, Circuit Judge.
Appellants challenge the District Court’s grant of summary judgment in
favor of the Appellees on two grounds: (1) the finding of legislative immunity was
inappropriate because Appellees’ conduct was not legislative in nature and (2) the
act of creating the Committee established a custom or policy sufficient to impose
liability on Starrucca Borough. Appellate jurisdiction is conferred upon us by 28
U.S.C. §§ 1291 and 1294(1). We exercise plenary review over the District Court’s
grant of summary judgment.1 We will affirm.
Appellants, former members of the Starrucca Borough Council (“Former
Council”), sued Appellees (“Present Council”) and the Borough pursuant to 42
U.S.C. § 1983, citing First Amendment and Fourteenth Amendment claims for
retaliation and due process violations. Former Council argues that Present Council
created a deposition committee (“Committee”) as a means to retaliate against them
for differing political views. The District Court found that the Committee was
immune from suit and granted Present Council’s motion for summary judgment.
In addition, the Court found that the Borough was not liable, because the
Committee engaged in a single act with a single purpose and did not establish a
custom or policy sufficient to impose liability on the municipality itself. Former
Council filed a timely appeal.
First, Former Council contends that the Present Council’s conduct was not
legislative and not protected by legislative immunity. In Youngblood v. DeWeese,
352 F.3d 836, 840 (3d Cir. 2003), this Court held that legislative immunity applies
1
Creque v. Texaco Antilles Ltd., 409 F.3d 150, 152 (3d Cir. 2005).
2
to municipal governments.2 In Tenney v. Brandhove, 341 U.S. 367 (1951), the
U.S. Supreme Court articulated the test for determining whether an act is
legislative by stating that the focus must be on the nature of the act rather than the
motive. This Court clarified that test and held that there are two requirements for
an act to be considered legislative in character: it must be “substantively” and
“procedurally” legislative. Ryan v. Burlington County, New Jersey, et al., 889 F.2d
1286, 1290-91 (3d Cir. 1989). In order for an action to be “procedurally”
legislative, it must be “passed by means of established legislative procedures.” Id.An action that is “substantively” legislative involves policy-making or line
drawing decisions. Acierno v. Coultier, 40 F.3d 597, 611-12 (3d Cir. 1994).
As the District Court found, and the Appellant does not urge to the contrary
in its brief, it is obvious that the procedural element is present;3 therefore, the only
question before us is whether the Present Council’s actions were substantively
legislative. Former Council argues that the Committee’s actions were not
legitimate legislative acts, because the questions posed to Former Council during
depositions were not in keeping with the stated goal of resolving Borough
financial problems. While it is true that the line of questioning in the depositions
2
Municipal legislators enjoy the same legislative immunity as federal and state
legislatures. Youngblood v. DeWeese, 352 F.3d 836, 840 (3d Cir. 2003).
Similarly, legislative immunity shields public officials outside the legislative
branch when they perform legislative functions. Baraka v. McGreevy, 481 F.3d
187, 195-96 (3d Cir. 2007) cert. denied 552 U.S. 1021 (2007).
3
Committee was formed pursuant to the Borough Code and subpoenas were
prepared, served, and enforced by the court, so there is no question that creation of
the Committee and its actions were procedurally legislative.
3
was derailed by hostility and personal animus, it is clear to us that the
interrogatories, which include 181 detailed questions, provide an accurate view of
the intent and function of the Committee and are consistent with the stated purpose
of resolving the Borough’s financial problems. This supports the District Court’s
finding that the Committee was created as a discretionary policymaking action
regarding budgetary matters and was appropriately deemed “substantively”
legislative.
The second issue raised on appeal is whether the act of creating the
Committee by Present Council amounted to custom or policy sufficient to impose
liability on Starrucca Borough. Liability under 42 U.S.C. § 1983 attaches to the
municipality only when “execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may be fairly said to
represent official policy, inflicts the injury.” Andrews v. City of Philadelphia, 895
F.2d 1469, 1480 (3d Cir. 1990) (citing Monell v. Dep. of Soc. Servs., 436 U.S. 658,
694 (1978)). Here, we have but a single act alleged; namely, the creation of the
Committee. To the extent that the Supreme Court has recognized a cause of action
under §1983 for a custom or policy based on a single decision attributable to a
municipality, the Supreme Court has done so only where the causal link between
the municipality’s conduct and the harm is clear, where, for example, the
municipality itself specifically authorizes or directs the deprivation. See County
Commissioners of Bryan County v. Brown, 520 U.S. 397, 405-6 (1997). That is not
the case here. Here, Former Council merely listed Starrucca Borough as a
4
defendant in their complaint and failed to offer any evidence to create the causal
link required to establish municipal liability under § 1983. Thus, liability based
on Present Council’s action cannot attach to Starrucca Borough.
In light of the above, summary judgment was properly granted. We will
affirm.
5