Nahmod Law

(It’s been a while since my last post. But I just finished teaching my First Amendment seminar and grading student papers, so I am back).

I have been updating my popular Section 1983 Primer series, first published sequentially over ten years ago. In my most recently updated post I blogged about the Supreme Court‘s approach to absolute immunity generally under section 1983. I specifically referred to the three categories of absolutely immune defendants–legislators, judges and prosecutors–and also discussed the underlying policy considerations and the Court’s functional approach. In this post I discuss legislative immunity.

Tenney v. Brandhove, 341 U.S. 367 (1951): The Seminal Decision

Tenney dealt with the potential liability of members of a California legislative sub-committee investigating Communism subversion. The plaintiff, an admitted Communist, sued them personally for damages under section 1983, alleging that they perverted the investigative process and violated his First Amendment rights. Ruling for the defendants in an opinion by Justice Frankfurter (only Justice Douglas dissented), the Court held that they were protected by absolute immunity from damages liability as a matter of section 1983 interpretation.

The Court made several points that continue to be significant to this day. First, even though section 1983 on its face says nothing about absolute immunity for anyone, the statute is to be interpreted against the common law immunity background in 1871, when section 1983 was enacted. According to the Court, if Congress had intended to overturn the well-established immunity of state legislators, it would have said so explicitly. The Court also pointed to the Speech or Debate Clause, Art. I, § 6, which protects members of Congress for their legislative conduct. Second, the Court observed that the allegedly unconstitutional conduct took place during a legislative investigation, which was a normal part of the legislative process.

The Impact and Coverage of Legislative Immunity

The point of absolute legislative immunity is to protect the democratic decision-making process from the chilling effect of lawsuits, as well as from liability. Once a legislator successfully asserts absolute immunity (typically by motion to dismiss or for summary judgment), he or she is no longer a defendant in the section 1983 action even if the allegations of the complaint are true. Therefore, it is the plaintiff who bears the costs of the constitutional deprivation.

Not surprisingly, absolute immunity extends beyond state legislative conduct to include regional and local legislative conduct as well. Lake County Estates v. Tahoe Regional Planning Authority, 440 U.S. 966 (1979)(regional legislators); Bogan v. Scott-Harris, 523 U.S. 44 (1998)(local legislators).

Recall, however, that the Court takes a functional approach to immunity, so that legislative immunity applies only to legislative acts and not, for example, to administrative acts. Compare the Supreme Court’s decision in Davis v. Passman, 442 U.S. 228 (1979), indicating that a member of Congress would not be entitled to absolute immunity in a Fifth Amendment sex discrimination damages suit filed by a fired personal aide unless the Speech or Debate Clause so provided.

Comments

Absolute legislative immunity is powerful medicine. On balance, though, it is thought to be justified by the need to promote independent legislative decision-making by defendants. After all, legislators are highly visible targets of litigation: their decisions will inevitably make many people unhappy. Also, there is a political solution available: the ballot.

Keep in mind as well that absolute legislative immunity also extends to immunity from injunctive relief. The Court so held in Supreme Court v. Consumers Union, 446 U.S. 719 (1980), where the Court found that the legislative acts of members of the Supreme Court of Virginia–promulgating attorney disciplinary rules– were protected by absolute legislative immunity from section 1983 injunctive relief.