Opposition Brief — Calhoun v. Odinet

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SMES MTR, Sew

E> j FILED

no. 91-892 DEC 20 1991

name OPPiCe"or THE CLERK

In the

Supreme Court of the United States

OCTOBER TERM, 1991

M. RIEMER CALHOUN, JR.

AND SOUTHLAND PARK APARTMENTS,

a Louisiana Partnership Jn Commendam,

Petitioners,

RANDOLPH T. ODINET, RONALD J. HAGGERTY,

LOUIS P. WINESKI, JR., ROBERT J. CRIFASSI,

JOHN A. METZLER, JR., GUS L. RIESS, JAMES J.

LICCARDI, JR., FLOYD J. LANDRY, ASHLEY

HENDERSON AND HENRY J. RODRIGUEZ, JR..,

INDIVIDUALLY AND AS MEMBERS OF THE

ST. BERNARD PARISH POLICE JURY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

HENRI WOLBRETTE, III

COUNSEL OF RECORD

CHARLES T. WEIGEL, JR. .

McGLINCHEY, STAFFORD,

CELLINI & LANG

643 Magazine Street

New Orleans, Louisiana

Telephone: (504) 586-1200

Counsel for Respondents

December 20, 1991

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

=~,

QUESTIONS PRESENTED

Are local government legislators entitled to ab-

solute immunity when sued by a developer in their

individual capacities for voting for a construction

moratorium that affected his plan to develop?

Where the district court does not consider evidence

outside of the complaint when it denies defendants’

motion to dismiss based on absolute immunity, are

issues of fact relevant in determining whether the

federal court of appeals has jurisdiction under 28

U.S.C. §1291 to review the denial of the absolute im-

munity defense?

Is it proper for a federal court of appeal to disregard

evidence not presented to the district court when

the district court ruled on defendants’ motion to

dismiss and which is not a part of a record on

appeal?

LIST OF PARTIES

M. Riemer Calhoun, Jr. and Southland

Park Apartments, a Louisiana partnership

in COU; 5... So ce ead woh eco ees Petitioners

Randolph T. Odinet, Ronald J. Haggerty,

Louis P. Wineski, Jr., Robert J. Crifassi,

John A. Metzler, Jr., Gus L. Riess, James

J. Licciardi, Jr., Floyd J. Landry, Ashley

Henderson and Henry J. Rodriguez, Jr.,

individually and as members of the St.

Bernard Parish Police Jury......... Respondents

%. Burned Pestee ..-. < .-+ ossdewsees Defendants

In Case

Below But

Not a Party

to This

Appeal.

Martha L. Cazaubon, Individually and as

Director of the St. Bernard Parish Depart-

ment of Safety and Permits........ Defendant in

the Case

Below but

Not a Party

to This

Appeal.

Pre a PT ay

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..... 1.2.2... cece ee eeee i

ee Gee Pe UO we ee eee ok ii

ee ng iii

TABLE OF AUTHORITIES ...................... iv

STATUTORY PROVISIONS INVOLVED ........... 1

STATEMENT OF THE CASE ..................... 2

REASONS FOR DENYING THE WRIT............ 7

1. The Decision Below was Not in Conflict With the

Decisions of this Court or with the Decisions of all

Other United States Courts of Appeal........... 7

2. The Denial of a Motion to Dismiss Based on Ab-

solute Immunity is Immediately Appealable and

Issues of Fact are Irrelevant to the Review of

I ae Sar IG, A 24

3. The Fifth Circuit Correctly Disregarded Evidence

not Presented to the District Court and not Part

of the Records on Appeal....... Beware acres 28

Eg TN Ee 30

APPENDICES

TABLE OF AUTHORITIES

CASES Page

Abney v. United States, 431 U.S. 651 (1977)......... 25

Anderson v. Creighton, 483 U.S. 635, 646 n.6, 97

L.Ed.2d 523, 107 S.Ct. 3034 (1987) ............... 11

Bateson v. Geisse, 857 F.2d 1300 (9th Cir.

So pi Rahs Oe Re eee oi nse ek ef

Baytree of Inverrary Realty Partners v. City of

Lauderhill, 873 F.2d 1407 (11th Cir. 1989)......... 11

Bello v. Walker, 840 F.2d 1124 (3rd Cir. 1988)..... 20,21

Bruce v. Riddle, 631 F.2d 272 (4th Cir. 1980) ......... i)

Butterworth v. Bowen, 796 F.2d 1379 (11th Cir.

ais cate 6 adh ee Ra ee bk 29

Cutting v. Muzzey, 724 F.2d 259 (1st Cir. 1984) .. .20,21

Feagley v. Waddill, 868 F.2d 1437 (5th Cir. 1989) ... .27

Frailin & Waldron, Inc. v. County of Henrico,

Virginia, 474 F. Supp. 1315 (E.D. Va. 1979)..... 20,22

Garcia v. Marine Corporation, 432 F.2d 6 (5th Cir.

Bie och oe cine dhe Sek Gals Unter eee kes es 29

Goland v. Central Intelligence Agency, 607 F.2d 339

(D.C. Cir. 1978), cert. den. 445 U.S. 927, 100 S.Ct.

Foe 2S Be 8 Dl. ee ree 30

Goodwin v. Elkins & Company, 730 F.2d 99 (3rd

Cir. 1984) n.9, cert den. 469 U.S. 831, 105 S.Ct.

SO ey ee I oe he kc cdees cece ewes 26

LOTR AE Os — ™

TABLE OF AUTHORITIES (continued)

Gorman Towers, Inc. v. Bogaslavaski, 626 F.2d 607,

R06 Tee a Bs kc ee eee 9,12,14

ater v. See, ... US... GORD «.... «62 23 15,19

Haskell v. Washington Township, 864 F.2d 1266

OBER Gils; Se oss Sia. Sek cies eee 20,22

Healy v. Town of Pembroke Park, 831 F.2d 989

ChE GI. Bs 6 Sask Spin oo ee eee 10,11

Helstocki v. Meanor, 442 U.S. 500 (1979) ......... 24,25

Hernandez v. City of Lafayette, 643 F.2d 1188 (5th

Cir. 1981) cert. denied, 455 U.S. 907 (1982)........ 8,9

In Re: GHR Energy Corporation, 791 F.2d 1200 (5th

Ce: FR oi Re ee eee eee eee 30

Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir.

1986) (quoting Mitchell v. Forsyth, 472 U.S. 11,

ROR Cee ire ee Os ok ek eres eteul ss 11

Johnson v. Odom, 910 F.2d 1273 (5th Cir. 1991)... ... 27

Lake Country Estates, Inc. v. Tahoe Regional Plan-

ning Agency, 440 U.S. 391 (1979) ............ 8,14,19

Mahoney v. Addicks Utility District of Farris Coun-

ey, S36 F Oa OES Geek Car. IGGR... cece cass: 26

Mitchell v. Forsyth, 472 U.S. 526 (1985).......... 11,24

Mitchell v. Tradewinds Company, 289 F.2d 178 (5th

CCN a bivicvagetee een ee et ae eee 30

TABLE OF AUTHORITIES (continued)

Nixon v. Fitzgerald, 472 U.S. 731 ............... 24,25

Rae v. Union Bank, 725 F.2d 478 (9th Cir. 1984) ..... 28

Rateree v. Rocket, 852 F.2d 946 (7th Cir. 1988)... .10,11

Rheuark v. Shaw, 628 F.2d 297, 304 n.12 (5th Cir.

BE oi vb bok ela n cae eee eee eae ae 9

Riccobono v. Whitpain Township, 497 F.Supp. 1364

Gee We TG. «occa Ock ee eae estes eae ed 20

Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40

Cee Oe... . os vc veneceeeeer eee 8

Scott v. Greenville County, 716 F.2d 1409 (4th Cir.

WOE. kv ce tc ooceeeus haya eee 20,21

Shelton v. City of College Station, 780 F.2d 475 (5th

Cir. 1986) (en banc), cert. denied, 477 U.S. 905

CRO 6 oc ke he ee ee ee eee 16,23

Simmons v. Peavy-Welsh Lumber Company, 113

F.2d 812 (5th Cir. 1940), cert. denied, 311 U.S.

685, 85 L.Ed. 442, 61 S.Ct. 63 (1940) ............. 28

State of Louisiana v. United States, 656 F.Supp.

1310 (W.D. La. 1986), affirmed 832 F.2d 935 (5th

Cir. 1986), cert. den. 485 U.S. 1033, 108 S.Ct.

1008, CORED. on ok ek oe ee eee ee 26

Tenney v. Brandou, 341 U.S. 367,

(1951)

Vii

TABLE OF AUTHORITIES (continued)

Village of Arlington Heights v. Metropolitan Hous-

ing Development Corp, 429 U.S. 252

Sk eet es bss enueeus uses 15,19,20

Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183

SNES MIS og in nas ee Sans 26

Weissinger v. United States, 423 F.2d 795 (5th Cir.

teagan Eaten sac ray ie lace tyegin, ul ms etait a lar OPP 29

STATUTES

42 U.S.C. $1983 .......... were hee eat er etry cy 8,17

RULES

Federal Rule of Civil Procedure 12(b) ......... 1,6,25,27

Federal Rule of Appellate Procedure 10(a) ......... 2,29

MISCELLANEOUS

16 Wright, Miller Cooper and Gressman, Federal

Practice and Procedure; Jurisdiction §3956

Soon ot Cho nee enn 29

STATUTORY PROVISIONS INVOLVED

Respondents submit that in addition to the statutes

listed by the petitioner, the following rules are pertinent to

a decision on this matter.

Federal Rule of Civil Procedure 12(b):

Every defense, in law or fact, to a claim for relief

and any pleading, whether a claim, counterclaim,

cross-claim or third party claim, shall be asserted

in the responsive pleading thereto if one is re-

quired, except that the following defenses may, at

the option of the pleader, be made by motion: (1)

lack of jurisdiction over the subject matter; (2)

lack of jurisdiction over the person; (3) improper

venue; (4) insufficiency of process; (5) insuffi-

ciency of service of process; (6) failure to state a

claim upon which relief can be granted; (7) failure

to join a party under Rule 19. A motion making

any of these defenses shall be made before

pleading if a further pleading is permitted. No

defense or objection is waived by being joined

with one or more other defenses or objections in

a responsive pleading or motion. If a pleading

sets forth a claim for relief te which the adverse

party is not required to serve a responsive

pleading, the adverse party may assert at the

trial any defense in law or fact to that claim for

relief. If, on a motion asserting the defense

number (6) to dismiss for failure of the pleading to

state a claim upon relief can be granted, matters

outside of the pleading are presented to and not

excluded by the court, the motion shall be treated

as one for summary judgment and disposed of as

provided in Rule 56, and all parties shall be given

reasonable opportunity to present all material

made pertinent to such a motion by Rule 56.

Federal Rules of Appellate Procedure 10(a):

Composition of the record on appeal. The original

papers and exhibits filed in the district court, the

transcript of the proceedings, if any, and a cer-

tified copy of the docket entries prepared by the

clerk of the district court shall constitute the

record on appeal on all cases.

The respondents, Randolph T. Odinet, Ronald J.

Haggerty, Louis P. Wineski, Jr., Robert J. Crifassi, John

A. Metzler, Jr., Gus L. Reiss, James J. Liccardi, Jr., Floyd

J. Landry, Ashley Henderson and Henry J. Rodriguez,

respectfully request that this Court deny the Petition for

Writ of Certiorari, seeking review of the Fifth Circuit’s

opinion in this case. That opinion is reported at 937 F.2d

172 (5th Cir., 1991).

STATEMENT OF FACTS

The respondents appealed this matter to the Fifth

Circuit Court of Appeals following the district court’s

denial of their motion to dismiss based on absolute immuni-

ty. The complaint was the only evidence submitted either

in support of or against this motion by either respondents

or petitioners, M. Riemer Calhoun, Jr. and the Southland

Park Apartments, a Louisiana corporation, in commendam

(hereinafter referred to ‘‘Calhoun’’). Therefore, the only

relevant facts are those alleged in the complaint.!

1 In Calhoun’s Statement of Facts, he quotes extensively from deposi-

tion testimony that was not submitted to the trial court at the time of

its ruling on the motion to dismiss and was not contained in the com-

plaint, and in fact these depositions were not even taken until after the

district court’s ruling on respondent’s motion to dismiss. This subject

is more fully discussed in Section 3 infra but for purposes of clarifica-

tion, respondents point out here that the district court denied respond-

ent’s motion to dismiss on August 27, 1990. Calhoun quotes from the

deposition of M. Riemer Calhoun and Charlotte Carol which were not

The pertinent facts alleged in Calhoun’s Complaint

are as follows. On December 8, 1987, the St. Bernard

Parish Police Jury enacted an ordinance containing a

moratorium, which stated:

it is moved to place a moratorium for any con-

struction or development of multi-family or com-

mercial establishments from the intersection of

East Judge Perez Drive and Highway 46 (Bayou

Road) eastward, for 120 days. (App. A, paras.

10-11, pgs. A-6,7).

This moratorium affected many other pieces of prop-

erty other than the property on which Calhoun held an op-

tion. It also prohibited commercial as well as multi-family

development.’

On April 5, 1988, the St. Bernard Parish Police Jury

extended the moratorium’s length, but narrowed its scope.

Footnote 1 continued.

taken until November 13, 1990. Calhoun also quotes from public

meeting of the St. Bernard Parish Planning Department which did not

occur until September 6, 1990. Calhoun also makes reference to an ‘“‘un-

written gentlemen’s agreement’’ which is Calhoun’s interpretation of

testimony given by the police jurors in their depositions on November

14, 1990.

2 In footnote 3 of the petition, Calhoun argues that the passing of the

moratorium violated state law. Calhoun confuses a zoning moratorium

with the amendment or establishment of a zoning regulation. The

moratorium is an interim zoning measure commonly enacted pending a

contemplated zoning change to avoid a rush of the type of development

which the zoning change is designed to restrict. It proceeds the actual

establishment or amendment of a zoning regulation, and it is not itself

the actual zoning change. Building moratoria have long been approved

as necessary interim zoning measures. Schafer v. City of Orleans, 743

F.2d 1086 (5th Cir. 1984); Jackson Court Condominiums, Inc. V. City of

New Orleans, 874 F.2d 1070 (5th Cir. 1989). In the present case, the St.

Bernard Parish Police Jury this year enacted a zoning change in com-

pliance with La. Rev. Stat. Ann. 33:140.51 - 140.61 (West 1988), chang-

ing the zoning of the property contained in the moratorium area.

This ordinance stated:

it [is] moved to extend the moratorium on issuing

building permits in St. Bernard Village for 250’

on either side of St. Bernard Highway (La. 46)

from its intersection with Judge Perez Drive to

Creedmore Canal through October 4, 1988. (App.

A, p. A-8, paras. 14-15).

Calhoun formally submitted an application for a

building permit shortly after this extension of the

moratorium and months after the passage of the original

moratorium. (App. A, p. A-8, para. 14). His application pro-

posed a multi-family housing complex, to be financed by

the Farmer’s Home Administration, a federal agency that

provides funding to developers to construct housing for the

elderly and persons of low and moderate income. (App. A,

p. A-5, para. 5). After submitting his application, Calhoun

learned that St. Bernard’s Department of Safety and Per-

mits would not issue a permit because his proposed site

was within the moratorium area. (App. A, p. A-5, para. 18).

The St. Bernard Parish Police Jury extended the

moratorium a second time on January 24, 1989, with the

same boundaries previously described, ‘‘as recommended

by Martha L. Cazaubon, Director/Secretary, Planning

Commission.” (App. A, pgs. A-10,11, para. 21). Calhoun

then revised his application, moving the apartment

development 250 feet back from St. Bernard Highway.

(App. A, pgs. A-11,12, para. 24). On April 4, 1989, the

Department of Safety and Permits issued a building permit

to Calhoun based on his revised plans. (App. A, p. A-12,

para. 25). The permit was issued for the Southland Park

Apartments, ‘FmHA housing for elderly (multiple fami-

ly).”” (App. A, p. A-12, para. 25).

Calhoun alleges that Farmer’s Home refused to

release obligated funds for construction because the permit

noted that the Southland Park Apartments were planned

as housing for the elderly. (App. A, p. A-12, para. 26).

Calhoun made demand upon the St. Bernard Parish

Department of Safety & Permits on October 24, 1989,

November 6, 1989, and November 20, 1989, insisting that

the words “for elderly’’ be deleted from the permit. (App.

A, pgs. A-12,13, para. 27). The Department of Safety & Per-

mits declined to amend the building permit. (App. A, p.

A-13 , para. 28). The complaint does not allege that

Calhoun sought any action from the police jury or brought

his situation to the police jury at any time before filing this

complaint against the respondents on November 30, 1989.

In Calhoun’s complaint, he named as defendants the

Parish of St. Bernard, ten of its individual police jury

members, and Martha L. Cazaubon, the Director of the St.

Bernard Parish, Department -of Safety and Permits.3

Respondents filed a motion to dismiss pursuant to Rule

3 Calhoun claims in his Statement of Fact that Police Juror Rodriguez

directly pressured Martha Cazaubon to delay the issuance of Calhoun’s

building permit. However, a review of the complaint indicates that these

facts are not alleged. Although his petition seeks review of a motion to

dismiss, Calhoun’s Statement of Facts is devoid of any references to his

complaint. His complaint was not included in the appendix. It is clear

from the compiaint that the only alleged action of the police jurors at

issue is their passage of the moratorium. Allegations concerning refusal

to grant a building permit are directed at Martha Cazaubon, who still

remains a defendant in her individual capacity. In footnote 4 of his peti-

tion, Calhoun claims that Ms. Cazaubon’s Motion for Summary J udg-

ment was denied by the district court on the grounds that she

capitulated to Rodriguez’s pressure. However, the ruling on Ms.

Cazaubon’s Motion for Summary Judgment makes no such finding.

Calhoun in footnote 4 also asserts that the Fifth Circuit’s ruling in this

case is ‘‘anamolous” because it makes a ‘‘meaningless distinction’”’ be-

tween Ms. Cazaubon, an administrative official, and Mr. Rodriguez, a

local government legislator. However, as more fully explained in Section

1 infra, the distinction for purposes of immunity is in accordance with

the rulings of this Court and the rulings of other circuit courts of ap-

peals. Additionally, contrary to the representations of Calhoun, Ms.

Cazaubon can still assert her entitlement to qualified immunity at trial.

12 (b)(6) of the Federal Rules of Civil Procedure on June 4,

1990 based on absolute and/or qualified immunity. The

district court denied the motion in a ‘‘Ruling on Motion

and Order’’ entered on August 28, 1990. The defendant

police jury members appealed that decision on September

21, 1990.4

The Fifth Circuit reversed the district court’s ruling

on August 1, 1991, holding that passage of the moratorium

was a legislative act entitling respondents to absolute

4 In footnote 5 of Calhoun’s petition, Calhoun implies that it was

somehow in error for respondent’s to perfect their appeal prior to the

completion of discovery. However, as discussed fully in Section 2, infra,

the denial of an immunity defense is immediately appealable even before

the commencement of discovery for the very reason that the immunity

defense loses much of its meaning if the defendant has to undergo

discovery and trial to determine his entitlement to the immunity.

Calhoun also points out that the Fifth Circuit did not consider any of the

facts deduced during this discovery as necessary to the resolution of the

immunity issue. As more fully discussed in Section 3 infra, the Fifth Cir-

cuit did not consider these facts because it was reviewing the denial of

a motion to dismiss based entirely on the allegations of the complairt.

Additionally, this discovery did not take place until after the district

court ruled on respondents’ motion to dismiss. It was therefore not part

of the record on appeal.

Finally, in footnote 5, Calhoun lists the motions respondents

filed after the district court’s ruling on the immunity issue, indicating

that all were denied by the district court. This listing is irrelevant and

inaccurate. On March 13, 1991, the district court granted respondent's

motion for summary judgment on Calhoun’s Fifth Amendment Takings

Claim because the district court ruled that claim was not “ripe’’ because

Calhoun never received a final decision from the Parish as to what type

of building permit, if any, would be reissued. Furthermore, Calhoun was

told that he could receive the requested building permit by merely resub-

dividing his property to separate the property within the moratorium

area from the property in whick he intended to build his project. The

district court granted the motion for summary judgment also based on

this failure to resubdivide and on Calhoun’s failure to seek a variance

from any local government body before filing suit. Instead, Calhoun

filed suit and served the respondents with the complaint on the morning

of a police jury meeting at which the moratorium was on the agenda.

immunity regardless of alhoun’s allegation of

discriminatory intent. (Petitioner’s App. B., p. A-3).5

REASONS WHY THE PETITION SHOULD

BE DENIED

1. The Decision Below is Not in Conflict with the Deci-

sions of this Court or with the Decisions of all Other

United States Courts of Appeals.

The Fifth Circuit held that the respondents’ passage

of an interim zoning moratorium was a legislative act and,

therefore, respondents were entitled to absolute immunity

from suit in their individual capecities. The Fifth Circuit

reasoned that this Court has adopted a functional approach

to immunities that examines the nature of the function

lawfully entrusted to the particular official. The Fifth Cir-

cuit then reasoned that zoning decisions, such as the

passage of an interim zoning moratorium, are legislative

acts even though not the initial enactment of an entire zon-

ing code. The fact that a zoning moratorium may be par-

ticularized does not mean that type of decision is not

legislative because it still involves an evaluation of

legislative facts. The Fifth Circuit also recognized that

5 In footnote 2 of his petition, Calhoun attempts to turn a routine

editorial change in the opinion of the Fifth Circuit into a reason for

granting certiorari in this matter. Calhoun attempts to imply a sinister

motive in the Fifth Circuit’s making the editorial change by describing

it as ‘‘mysterious,’’ “‘disturbing’’ and ‘‘inexplicable.”’ However,

Calhoun’s accusation is flawed as is evident from Section 1, infra.

Whether Calhoun sued respondents for refusing to grant him a zoning

variance or for passing an interim zoning moratorium, the Fifth Cir-

cuit’s legal analysis should have remained the same. As the Fifth Circuit

stated in its opinion ‘‘The result accords with Arlington Heights v.

Metropolitan Housing Corporation, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.

2d 450 (1977), where the court evaluated the denial of a request for

rezoning of a specific parcel of property as a legislative act.’’ (Peti-

tioner’s Appendix B, page A-7).

legislative immunity would apply regardless of any allega-

tions of discriminatory intent.

Strong policy reasons support immunity for in-

dividual public officials. These reasons were articulated in

Scheuer v. Rhodes, 416 U.S. 232, (1974), as follows:

The public interest requires decisions and action

to enforce laws for the protection of the public ...

public officials, whether governors, mayors, or

police, legislators or judges, who fail to make deci-

sions when needed or who do not act to imple

ment decisions when they are made do not fully

and faithfully perform the duties of their offices.

Implicit in the idea that officials have some im-

munity - absolute or qualified - for their acts is a

recognition that they err. The concept of immuni-

ty assumes this and goes on to assume that it is

better to risk some error and possible injury from

such error than not to decide or act at all. 416

U.S. at 241-2.

In Tenney v. Brandov, 341 U.S. 367 (1951), the Court

held that state legislators acting within the scope of their

legislative duty are absolutely immune from civil suits for

damages. This absolute immunity from suit was extended

to regional legislators in Lake Country Estates, Inc. v.

Tahoe Regional Planning Agency, 440 U.S. 391 (1979).

Hernandez v. City of Lafayette, 643 F.2d 1188 (5th

Cir. 1981), cert. denied, 455 U.S. 907 (1982), held that a

mayor who vetoed an ordinance passed by the city’s

legislative body was absolutely immune from suit under 42

U.S.C. §1983, the court stating:

When the mayor exercises his veto power, it con-

stitutes the policy-making decision of an in-

dividual elected official. It is as much an exercise

of legislative decision - as is the vote of a member

of Congress, a state legislator, or a city coun-

cilman. 643 F.2d at 1194.

The court’s decision turned on whether the mayor’s task

was “‘legislative,”’ noting ‘‘that local legislators are entitled

to absolute immunity from suit under §1983 for conduct in

the furtherance of their duties.’’ 643 F.2d at 1193. The Her-

nandez court also acknowledged that two other courts of

appeal, with the Fifth Circuit in dictum, held local

legislators entitled to absolute immunity from civil suit

under §1983, citing Rheuark v. Shaw, 628 F.2d 297, 304

n.12 (5th Cir. 1980); Bruce v. Riddle, 631 F.2d 272 (4th Cir.

1980); Gorman Towers, Inc. v. Bogaslavaski, 626 F.2d 607,

611-14 (8th Cir. 1980).

In Hernandez, the plaintiff complained that the City

of Lafayette and its mayor had intentionaily delayed a final

decision on the rezoning of his property in an effort to

depress the market value of his land. Jd. Holding that the

mayor was absolutely immune from suit, the court noted

that “‘zoning is a legislative function of government.”’ Jd.

Like Hernandez, Calhoun alleges that the respondents were

motivated by an evil intent. However, the conduct which

the complaint places at issue is pure legislative activity - a

vote on an interim zoning measure.

Calhoun’s wholly conclusory allegations that the

moratorium was motivated by a desire to discourage black

residents and that the moratorium was targeted at his pro-

ject, are insufficient to defeat the cloak of immunity for two

reasons.® First, the ten police jurors’ motives for enacting

6 These allegations are denied by the defendants.

the legislation are irrelevant to an absolute immunity

defense. The entire thrust of the defense is to avoid inquiry

into the motives of legislators. In Tenney, supra., this

Court stated:

The c’sim of an unworthy purpose does not

destroy the privilege. Legislators are immune

from deterrence to the uninhibited discharge of

their legislative duty, not for their private in-

dulgence but for the public good. One must not

expect uncommon courage even in legislators.

The privilege would be of little value if they could

be subjected to the cost and inconvenience of and

distractions of a trial upon a conclusion of the

pleader, or to the hazard of a judgment against

them based upon a jury speculation as to motives.

The holding of this court in Fletcher v. Peck,

(U.S.) 6 Cranch 87, 130, 3 L.Ed. 162, 176, that it

was not consonant with our scheme of govern-

ment for the court to inquire into the motives of

legislators, has remained unquestioned . in

times of political passion, dishonest or vindictive

motives are readily attributed to legislative con-

duct and are readily believed. Courts are not the

place for such controversies. 341 U.S. at 377-78.

More recently, in Rateree v. Rocket, 852 F.2d 946

(7th Cir. 1988), the court afforded absolute immunity to

commissioners approving a budget which eliminated jobs.

The court adopted the opinion of the district court, which

“found that the actions of the defendants were legislative,

not administrative, and were therefore protected,

regardless of the defendants’ motives.’’ 852 F.2d at 948.

Similarly, in Healy v. Town of Pembroke Park, 831

F.2d 989 (ilth Cir. 1987), the court affirmed the district

court’s grant of immunity to a mayor and town commis-

sioners who voted to contract out police services,

eliminating plaintiffs’ jobs. The court pointed out that the

record contained allegations that anti-union sentiment

motivated the vote, but stated that ‘‘to use these allega-

tions to penetrate the shield of absolute immunity would

create a deterrent to the fact finding and decision making

duty of local legislators.’”’ Jd. at 993. As in Rateree, the

Healy court refused to consider the motives of the

legislators in affirming summary judgment on the issue of

absolute immunity.

Finally, in Baytree of Inverrary Realty Partners v.

City of Lauderhill, 873 F.2d 1407 (11th Cir. 1989), a realty

association alleged that the city’s failure to grant its ap-

plication to amend a zoning decision made was legislative

and, therefore, absolutely immune from suit despite allega-

tions of improper motive.

As in Tenney, Rateree, Healy, and Baytree,

Calhoun’s conclusory allegations of improper motive can-

not defeat legislative immunity. The balance between a

complainant’s right to be heard and a public official’s right

to be free from frivolous personal suits has been struck in

favor of the public official, leaving the complainant with a

remedy against the public body. This result is essential

because immunity questions should be resolved at the

“earliest possible stage of the proceedings,’ and because

‘immunity from suit extends beyond just defense to liabili-

ty to include all aspects of civil litigation.’’ Anderson v.

Creighton, 483 U.S. 635, 646 n.6 (1987); Jacquez v. Pro-

cunier, 801 F.2d 789, 791 (5th Cir. 1986) (quoting Mitchell

v. Forsyth, 472 U.S. 11 (1985)). These concerns would be

completely mooted if Calhoun’s bald allegation of racial

motivation could subject the respondents to trial as to why

they voted on a particular ordinance. :

Second, Calhoun alleges that the moratorium was

enacted, and subsequently extended on two occasions, sole-

ly for the purpose of thwarting the Southland Park Apart-

ments. This suggestion, like his claim of racial discrimina-

tion, is purely conclusory. Aside from two discussions with

Henry Rodriguez, Jr., one of the police jurors, Calhoun

does not allege any facts to suggest that the other nine

members of the police jury had even heard of the Southland

Park Apartments when they voted on the moratorium. The

moratorium was passed in December of 1987, and extended

in April of 1988, before Calhoun submitted an application

for a building permit. Calhoun does not suggest that he

sought to discuss the Southland Park Apartments at police

jury meetings, that he opposed the moratorium at police

jury meetings, or that he ever discussed the Southland

Park Apartments with any police juror other than Henry

Rodriguez, Jr., in whose district the building was proposed.

The language of the moratorium itself covered all commer-

cial development as well as multi-family housing. It was

not limited to the tract of land which Calhoun had

optioned.

Calhoun’s complaint does not allege that any of the

police jurors denied a building permit to Calhoun, or that

the police jurors had the ability to control the issuance of

a building permit. Indeed, the Complaint acknowledges

that once Calhoun amended his permit application to place

the apartments outside of the moratorium area, the

Department of Safety & Permits - not the police jury - con-

trolled whether a permit could issue and what it would

allow. (App. A, pgs. A-12,13, paras. 27-8).

A case on point with the present case is Gorman

Towers, Inc. v. Bogaslavski, 626 F.2d 607 (8th Cir. 1980),

where the court affirmed dismissal of the individual defend-

ants on the grounds of absolute legislative immunity. A

developer and architect contended that city officials con-

spired to prevent construction of a proposed apartment

complex for the handicapped and elderly by amending the

city’s zoning ordinance to ban multi-family housing units.

While plaintiffs contended that the zoning change prospec-

tively denied them a building permit, the court separated

the functions of (a) amending the zoning ordinance and (b)

denying an application for a permit. Even though the zon-

ing change impacted plaintiffs’ ability to obtain a permit,

the court held that the legislators passing the ordinance

were absolutely immune from suit, stating:

Because municipal legislators are closer to their

constitutents than either their state o~ federal

counterparts, they are, perhaps, the most

vulnerable to and least able to defend lawsuits

caused by the passage of legislation. Particularly

in the area of land use, where decisions may have

an immediate quantifiable impact on both the

value and development of property, local

legislators should be free to act solely for the

public good without the specter of personal liabili-

ty with the passage of each zoning ordinance.

(Citations omitted). 626 F.2d at 612.

The court discussed the following effective checks on

unconstitutional conduct which still existed after the local

legislators were given absolute immunity for their land use

decisions:

First, rezoning may be attacked on direct judicial

review. as being arbitrary, capricious, or

unreasonable. Winderoff v. City of Fort Smith,

251 Ark. 342, 472 S.W.2d 74, 76 (1971). Moreover,

an unconstitutional zoning ordinance may be

declared invalid in federal court. See, e.g.,

Parkview Heights Corp. v. City of Black Jack,

467 F.2d 1208, 1213 (8th Cir. 1972). Further,

willful deprivation of civil constitutional rights

under color of state law are punishable under 18

U.S.C. §242, the criminal analog of §1983. Imbler

v. Pachtman, supra, 424 U.S. at 429, 96 S.Ct. at

994; see United States v. Gillock, 445 U.S. 360,

100 S.Ct. 1185, 1193, 63 L.Ed.2d 454 (1980) (of-

ficial immunity cases have drawn the line at civil

actions). Finally, the city directors of Fort Smith

are elected officials ‘subject to the responsibility

and the break of the electoral process’. Lake

Country Estates, Inc. v. Tahoe Regional Planning

Agency, supra, 99 S.Ct. at 1181 (Blackmun, J.

dissenting). 626 F.2d at 613.

All of the checks discussed in Gorman Towers are

present here, supporting immunity for the individual de-

fendants. Indeed, this case for immunity is particularly

strong because the moratorium was still in effect, still sub-

ject to extension or modification, and zoning decisions were

still being formulated, when Calhoun served the

respondents with his complaint. All of the police jurors

were served on December 5, 1989, the morning of a police

jury meeeting where the moratorium was on the agenda.

Such complaints threaten to influence the legislative

process, and illustrate the need for absolute immunity.

Moreover, if a plaintiff could circumvent the shield of ab-

solute immunity simply by alleging a discriminatory

motive, immunity could never be decided before trial.

Agais. the doctrine of absolute immunity is intended to

avoid precisely that result.

Calhoun strains to characterize this as a case involv-

ing a purely administrative decision concerning the is-

suance of a single building permit. However, his complaint

clearly establishes that the respondents’ challenged con-

duct was legislative, the passing of a broad-based

moratorium binding all landowners within its purview, not

just Calhoun. The complaint does not allege that the in-

dividual police jurors had involvement in denying the per-

mit, aside from their votes to pass and extend the building

moratorium. It is plain from the Complaint that Calhoun

seeks to hold the respondents individually liable solely due

to their votes in support of a building moratorium, conduct

which is plainly legislative. The only defendant alleged to

have denied a permit is defendant, Martha L. Cazaubon,

Director of the St. Bernard Department of Safety & Per-

mits, who still remains a defendant in her individual

capacity.

Calhoun cites Hafer v. Melo, ___. U.S. ____ (1991);

Forrester v. White, 484 U.S. 219 (1988); and Village of

Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252 (1977) as support for his proposition

that the Fifth Circuit’s opinion in this case conflicts with

the decisions of this Court. However, 1 review of these deci-

sions shows to the contrary.

Hafer is not dispositive of the issues before this

Court. It does not change the law governing the Fifth Cir-

cuit’s opinion. Calhoun describes Hafer merely as holding

“that state elected officials may be held personally liable

for damages under Section 1983 for the constitutional

wrongs they commit in their official capacities,’’ (Petition,

p. 11). Even cursory analysis of Hafer reveals that its

holding has no relevance to the Fifth Circuit opinion in this

case.

Contrary to the import of Calhoun’s Petition, Hafer

did not hold that public officials performing legislative

functions are not immune from suit in their personal

capacity. The Hafer opinion, in fact, mentions legislative

function immunity only one time, and then to reaffirm it.

Hafer, Slip Op. p. 6. Consistent with this brief reference,

the Fifth Circuit held that the individual police jurors are

immune based on their legislative functions. Plainly, the

Hafer decision does not contravene this holding.

The Fifth Circuit’s reliance on respondents’ perform-

ance of legislative functions is apparent from the opening

sentence of its discussion of the applicable law. ‘‘The

Supreme Court has adopted a functional approach to im-

munities. As the Court recently explained in Forrester v.

White, 484 U.S. 219, 108 S.Ct. 538, 542, 98 L.Ed.2d 555

(1988), ‘we examine the nature of the functions with which

a particular official or class of officials has been lawfully en-

trusted ....’ ’’ Calhoun v. St. Bernard Parish, 937 F.2d 172,

174 (5th Cir. 1991). Employing this analysis, the court

reasoned that the individual police jurors are entitled to ab-

solute immunity because they perform a legislative func-

tion. Recognizing a variety of officials entitled to

legislative immunity, the court ultimately held the

respondents “entitled to legislative immunity against

damages in their individual capacities.”’ Jd.

Addressing the argument that particularized zoning

ordinances are not the product of legislative action, the

Fifth Circuit found Shelton v. City of College Station, 780

F.2d 475 (en banc) (5th Cir. 1986), cert. denied, 477 U.S. 905

(1986), controlling. Shelton rejected the argument that zon-

ing decisions that resembled judicial decision-making are

not legislative functions. ‘‘It follows that the decision at

issue was a legislative judgment, an evaluation of

legislative facts, even though the legislative decision was

not the initial enactment of a zoning code. Rather, the spot

zoning remained legislative in character.’’ 937 F.2d at 174

(emphasis added). There can be no doubt the Fifth Circuit's

decision rested squarely on the police jurors’ legislative

functions.

Hafer decided a broader, threshold issue not present

in this case. Legislative function had nothing to do with

Hafer’s holding that a public officer may be sued in a per-

sonal capacity under Section 1983. In contrast to

respondents’ legislative function, the targeted conduct in

Hafer was the firing of 21 employees who allegedly had

‘“‘purchased”’ their jobs from Ms. Hafer’s predecessor in of-

fice. She defended against the dismissed employees’ Sec-

tion 1983 actions by contending that she could not be sued

in a personal capacity for employment decisions made in

her official capacity. This defense was not. asserted in the

case at bar. This Court granted certiorari to determine

‘‘whether state officers may be held personally liable for

damages under §1983 based upon actions taken in their of-

ficial capacities.”’

This Court held that, although a public official may

not be sued under Section 1983 in her official capacity, per-

sonal capacity suits are another matter. A public officer

may be sued for official acts in a personal capacity under

Section 1983, such suits being the primary purpose for Sec-

tion 1983. The Hafer opinion made it clear that holding

public officials susceptible to suit does not mean that they

may not plead a particularized defense of immunity, such

as respondents successfully asserted.

One of Hafer’s arguments distinguished two

categories of acts taken under color of state law: those out-

side her authority and those within official authority. She

argued that the latter could not support a personal-

capacity action. This Court rejected this distinction by

recognizing that immunity was not inconsistent with

personal-capacity suits. Hafer’s argument could not be

“reconciled with [the] decisions regarding immunity of

government officers otherwise personally liable for acts

done in the course of their official duties.’’ Citing the func-

tional basis for immunities, the Court recognized that ab-

solute immunity has been afforded ‘‘a very limited class of

officials, including . . . legislators carrying out their

legislative functions ....’’ Hafer, Slip Op. p. 6.7 The Court

explained that this personal immunity (which is the issue

in the present case) was unrelated to Hafer’s arguments on

the issues before the Court. ‘“That Hafer may assert per-

sonal immunity within the framework of these cases in no

way supports her argument here.’’ Hafer, Slip Op. p. 6.

Such personal immunity, based on legislative function, is

precisely what respondents successfully asserted in the

Fifth Circuit. Legislative function immunity, expressly

recognized in Hafer, is firmly “within its framework.”

Hafer and the Fifth Circuit opinion in this case are

therefore completely at harmony.

Calhoun argues that the Fifth Circuit’s opinion con-

flicts with Fo~rester v. White, 484 U.S. 219 (1988) because

the Fifth Circuit’s opinion did not comply with that portion

7 Calhoun miscites the one portion of Hafer which is applicable to this

case. Calhoun states in his petition at page 11 ‘““Thus, absolute immunity

has been extended to ‘a very limited class of officials’ and the ‘officials

seeking absolute immunity must show that such immunity is justified

for the governmental function at issue.’ Hafer Slip Op. p. 6”. The com-

plete quotation of this passage shows that this Court has extended ab-

solute immunity to a limited class of officials including legislators per-

forming their legislative function, the issue in the present case.

Rather, immunity from suit under Section 1983 is

‘predicated upon a considered inquiry into the immunity

historically accorded the relevant official at common law and

the interests behind it.’ Imbler v. Pachtman, 424 U.S. 409,

421 (96 S.Ct. 984, 990, 47 L.Ed.2d 128 (1976), an official seek-

ing absolute immunity must show that such immunity is

justified for the governmental function at issue, Burns v.

Reed, 500 U.S. ____, ___, 111 S.Ct. 1934, ___ 114 L.Ed.2d

547 (1991).

This Court has refused to extend absolute immunity beyond

a very limited class of officials, including the President of the

United States, legislators carrying out their legislative func-

tions, and judges carrying out their judicial functions,

‘whose special functions or constitutional status requires

complete protection from suit.’ Harlow v. Fitzgerald, 457

U.S. 800, 807, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982).””

Hafer, Slip Op. p. 6.

of Forrester which states “officials who seek exemption

from personal liability have the burden of showing that

such an exemption is justified by overriding considerations

of public policy.’’ 484 U.S. at 224. However, it was un-

necessary for the Fifth Circuit to put forth reasons why im-

munity to legislators is justified by overrriding considera-

tions of public policy. This Court has already determined

that public policy requires that legislators be given ab-

solute immunity for performing legislative functions. Ten-

ney; Lake Country Estates; and Hafer.

Calhoun argues that the Fifth Circuit misplaces

reliance on Village of Arlington Heights v. Metropolitan

Housing Corp., 429 U.S. 252 (1977). The Fifth Circuit mere-

ly cited Arlington Heights to show that this Court ana-

lyzed as a legislative act a request for rezoning of a specific

piece of property. The Fifth Circuit recognized, as did this

Court in Arlington Heights, that a zoning decision that ap-

plies to a specific piece of property still involves the evalua-

tion of legislative facts and is a legislative judgment even

though not the enactment of a zoning code. The Fifth Cir-

cuit reasoned that if denial of a request for rezoning of a

specific piece of property is legislative act, then surely

respondents’ passage of an interim zoning moratorium that

affected more than the property on which Calhoun held an

option is also a legislative act. Contrary to petitioner’s

assertions, it was the nature of the decision in Arlington

Heights that led the Court to treat it as a legislative act

rather than the fact that any of the officials may have been

acting under authority of a comprehensive zoning plan.

Also contrary to petitioner’s assertions, this case

does not present the alleged issue left open in Arlington

Heights. The issue there was whether an equal protection

violation could be shown by the racially disproportionate

impact of a zoning decision or whether it was necessary to

show racially discriminatory intent or purpose. The Court

held that proof of racially discriminatory intent or purpose

was required and the Court gave factors to help determine

when racially discriminatory intent was a motivating fac-

tor in a decision. With regard to the specific facts in Arl-

ington Heights, this Court affirmed the lower court’s deci-

sion that no racially discriminatory intent was involved

partly because the restrictive zoning of the property preex-

isted the town’s knowledge of the plan to erect integrated

housing. This Court pointed out that had the zoning sud-

denly been changed upon the town’s learning of the in-

tegrated housing, this factor would have affected the

holding.

The issue of immunity was not involved in Arlington

Heights. Whether racially discriminatory intent would

have have been found if a sudden zoning change had ex-

isted has no applicability to this case because a legislator’s

motive for enacting legislation is irrelevant to an absolute

immunity defense. Tenney.

Calhoun claims that the Fifth Circuit’s ruling is in

conflict with every other circuit court of appeals, citing

Haskell v. Washington Township, 864 F.2d 1266 (6th Cir.

1988); Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988);

Bello v. Walker, 840 F.2d 1124 (8rd Cir. 1988); Cutting v.

Muzzey, 724 F.2d 259 (1st Cir. 1984); Scott v. Greenville

County, 716 F.2d 1409 (4th Cir. 1983); Riccobono v. Whit-

pain Township, 497 F.Supp. 1364 (E.D. Penn. 1980); and

Frailin & Waldron, Inc. v. County of Henrico, Virginia, 474

F.Supp. 1315 (E.D. Va. 1979). These cases are factually

distinguishabie and do not indicate that thse circuits would

rule differently from the Fifth Circuit given the facts alleg-

ed in Calhoun’s complaint.

Riccobono is a district court case and therefore does

not indicate how the Third Circuit would rule on the issue.

Additionally, in Riccobono, the plaintiff submitted a

building permit and the approval of that permit was direct-

ly voted upon by the township board of supervisors. This

is distinguishable from the actions of the respondents in

that Calhoun has alleged only the respondents’ passed a

zoning moratorium that affected his ability to get a permit.

Calhoun has not alleged and cannot allege that the

respondents have the power to approve or deny permits as

was the case in Riccobono.

Cutting is distinguishable on similar grounds as Ric-

cobono. In Cutting, the local planning board had the power

to approve or disapprove directly plaintiff’s proposed sub-

division. The board would not approve the subdivision plan

until the developer complied with specific conditions it

placed on the proposal. Respondents did not directly either

approve or disapprove Calhoun’s building permit. They

merely passed an interim zoning moratorium that affected

his ability to obtain a building permit and affected an en-

tire area of St. Bernard Parish.

In Bello, the issue of immunity from suit was not

raised. Nothing in that decision indicates that the

municipal officers were sued in their personal as opposed to

their official capacities. Bello dealt with whether the allega-

tions were sufficient to state a cause of action on the merits

under due process and the Fifth Amendment. Bello does

not indicate how the Third Circuit would rule on the im-

munity issue.

The Fourth Circuit’s decision in Scott is also not at

odds with the Fifth Circuit’s ruling. Scott held that county

legislators are entitled to absolute immunity when func-

tioning in a legislative capacity, but that legislative im-

munity did not apply on the facts which were

distinguishable from the case at bar. After the Scott plain-

tiff’s permit application was submitted, the county council

ordered the halting of the processing of all pending per-

mits. Only the plaintiff's permit was pending at the time.

In contrast, Calhoun did not have a permit pending at the

time the moratorium was enacted and the respondents did

not specifically direct the permits department to stop pro-

cessing any pending permit of Calhoun.

Frailin, is another district court case and therefore

does not indicate how the Fourth Circuit would rule on the

immunity issue. The Fifth Circuit’s decision is in harmony

with Frailin as it held both that absolute immunity does ex-

tend to local legislators when they perform legislative func-

tions and that zoning decisions to downgrade the zoning in

an area are legislative.

Haskell also held that legislators of a political sub-

division of a state are absolutely immune when acting in a

legislative capacity. Haskell is not in conflict with the Fifth

Circuit’s ruling as it did not rule on the immunity issue by

remanding the issue for a determination as to whether the

actions involved in that case were legislative or ad-

ministrative. The action in MHaskell was also

distinguishable. After, the plaintiff proposed to open an

abortion clinic in the defendant township, the township

then passed a zoning ordinance that placed abortion clinics

within a certain zoning classification. Within that zoning

classification, only three acres of land existed in the

township and all three acres were occupied by a cement

company, effectively prohibiting the construction of any

abortion clinics in the township. In the case at bar, there is

no allegation that the moratorium prevented the construc-

tion of Calhoun’s development everywhere in the Parish of

St. Bernard. In fact, the complaint admits that the

moratorium only affected the first 250 feet of his property

and that it was feasible for him to construct his project on

the part of his property that was not within the

moratorium area.

Bateson is also distinguishable from the Fifth Cir-

cuit’s opinion because in Bateson, the developer applied for

a permit and satisfied all conditions that were required to

be permitted. Then the city council changed the zoning on

his property alone and voted to withhold the issuance of a

permit to him. In the case before this Court, the

moratorium affected property other than the property on

which Calhoun held an option and Calhoun had not even ap-

plied for a permit when the moratorium was passed. Addi-

tionally, the respondents never voted to withhold the is-

suance of a permit to Calhoun. In fact, Calhoun never

sought any approval from respondents for his project or

even brought the situation to the attention of the police

jury.

Calhoun criticizes the Fifth Circuit’s reliance on

Shelton v. City of College Station, 780 F.2d 475 (5th Cir.

1986) (en banc), cert. denied, 477 U.S. 905 (1986) implying

that the Fifth Circuit used “hypothesized purposes” as it

did in Shelton to justify the immunity granted in this case.

The Fifth Circuit relied on Shelton for its holding that the

denial of a request for a zoning variance is a legislative act,

even if made by a board of zoning adjustments as opposed

to a municipal legislative body and even though that deci-

sion is not the enactment of a zoning code. The analysis in

Shelton that included giving hypothesized purposes to a

zoning decision concerned Shelton’s analysis of the merits

of the plaintiff's due process claim and not the analysis as

to what is a legislative act. For the purposes of determining

immunity, Shelton’s hypothesized purposes are irrelevant

because a legislator’s motives for enacting legislation are

irrelevant to his absolute immunity defense. Tenney.

The Fifth Circuit’s holding in this case is in harmony

with the decisions of this Court and with the decision of

other federal circuit courts of appeals. Its approach was not

‘“novel’” and was not the establishment of a “distinct

minority rule.’’ The Fifth Circuit, in accord with the de-

cisions of this Court, merely extended absolute immunity

for what was clearly a legislative function.

2. The Denial of a Motion to Dismiss Based on Ab-

solute Immunity is Immediately Appealable, and

Issues of Fact are Irrelevant to the Review of that

Decision.

This Court held in Mitchell v. Forsyth, 472 U.S. 526

(1985) that the denial of a substantial claim of absolute im-

munity is an order appealable before final judgment and

the denial of a claim for qualified immunity, to the extent

that it turns on the issue of law, is also an appealable final

decision. With regard to absolute immunity, the Court

stated in Mitchell:

Thus, the denial of a substantial claim of absolute

immunity is an order appealable for final judg-

ment, for the essence of absolute immunity is the

possessor’s entitlement not to have to answer for

his conduct in a civil damages action. See, Nixon

v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73

L.Ed.2d 349 (1982); cf. Helstoski v. Meanor, 442

U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979).

This Court stated three reasons why the issue is im-

mediately appealable. First, the denial of a claim of ab-

solute immunity is: ‘‘effectively unreviewable on appeal

from a final judgment’”’ 472 U.S. at 527 because ‘“‘the en-

titlement is an immunity from suit rather than a mere

defense to liability; and . . . it is effectively lost if a case is

erroneously permitted to go to trial.’’ Id. Secondly, the

denial of a claim for absolute immunity ‘‘will be determined

as the defendant’s claim of right not to stand trial on the

plaintiff’s allegations, and because ‘[t]here are simply no

further steps that can be taken in the district court to avoid

the trial the defendant maintains is barred.’ ’’ 472 U.S. at

527. Third, ‘‘{[A] claim of immunity is conceptually distinct

from the merits of the plaintiff’s claim that his rights have

been violated.’’ Jd. ;

On three prior occasions this Court held that orders

denying claims of absolute immunity were immediately ap-

pealable. Nixon v. Fitzgerald, 472 U.S. 731 (1985) (denial of

absolute immunity claim of former President of the United

States was an appealable collateral order); Helstocki v.

Meanor, 442 U.S. 500 (1979) (denial of claim of absolute im-

munity under speech and debate clause immediately ap-

pealable); Abney v._ United States, 431 U.S. 651 (1977)

(denial of claim of immunity under double jeopardy clause

immediately appealable).

Calhoun seeks to avoid this line of jurisprudence by

relying on the language in the district court’s ruling that

issues of material fact preclude the granting of

respondents’ motion to dismiss. This reasoning is incorrect

because, as the Fifth Circuit implicitly recognized, there

could have been no unresolved issues of material fact,

because respondents’ motion to dismiss was based on the

allegations of Calhoun’s complaint, and no evidence was

submitted to the court. Therefore, the issue before the

Fifth Circuit was purely a legal one, whether the allega-

tions of plaintiff's complaint were sufficient to overcome

respondents’ absolute immunity defense.

Fed. R. Civ. P. 12(b) states in pertinent part:

If, on motion asserting the defense numbered (6)

to dismiss for failure of the pleading to state a

claim upon which relief can be granted, matters

outside of the pleading are presented to and not

excluded by the court, the motion shall be treated

as one for summary judgment and disposed of as

provided in Rule 56, and all parties shall be given

reasonable opportunity to present all material

made pertinent to such a motion by Rule 56.

Under this language, a district court may convert a

12(b)(6) motion to dismiss into a motion for summary judg-

ment when the parties submit, and the court considers,

material extraneous to the complaint. Mahoney v. Addicks

Utility District of Farris County, 836 F.2d 921 (5th Cir.

1988); Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183

(5th Cir. 1986); Goodwin v. Elkins & Company, 730 F.2d 99

(3d Cir. 1984) n.9, cert. den. 469 U.S. 831; Louisiana v.

United States, 656 F.Supp. 1310 (W.D. La 1986), aff'd 832

F.2d 935 (5th Cir. 1986), cert. den. 485 U.S. 1033 (1986). The

notes of the advisory committee on Rule 12(b) explain how

this rule operates:

On motion under Rule 12(b)(6) to dismiss for

failure of the complaint to state a good claim, the

trial court should have authority to permit the in-

troduction of extraneous matter, such as may be

offered on a motion for summary judgment, and

if it does not exclude such matter, the motion

should be treated as a motion for summary judg-

ment and disposed of in the manner and on the

conditions stated in Rule 56 relating to summary

judgments, and, of course, in such a situations,

when the case reaches the Circuit Court of Ap-

peals, that court should treat the motion in the

same way.

The addition at the end of subdivision (b) makes

it clear that on a motion under Rule 12(b)(6) ex-

traneous material may not be considered if the

court excludes it, but that if the court does not ex-

clude such material, the motion shall be treated

as a motion for summary judgment and disposed

of as provided in Rule 56. It will also be observed

that if a motion under Rule 12(b)(6) is thus con-

verted into a summary judgment motion, the

amendment ensures that both parties shall be

given a reasonable opportunity to submit af-

fidavits and exchange proofs to avoid taking a

party by surprise through the conversion of the

motion into a motion for summary judgment.

Emphasis supplied).

As can be seen from the cases and the advisory com-

mittee notes, an appellate court treats a 12(b)(6) motion to

dismiss as a motion for summary judgment only when the

trial court was presented with and considered material out-

side of the complaint. Also, as stated in Rule 12(b) and in

the advisory committee notes, when the district court con-

verts a 12(b)(6) motion to dismiss into a motion for sum-

mary judgment and considers material outside of the com-

plaint, the district court should give all parties reasonable

opportunity to submit extraneous proof prior to ruling on

the motion to dismiss.

In this case, the district court did not convert

respondents’ 12(b)(6) motion to dismiss into a summary

judgment. The district court was not presented with any

material outside of the complaint, and it did not give the

parties time prior to ruling to submit extraneous material.

Since the district court treated respondents’ motion as a

motion to dismiss under Rule 12(b)(6) and only considered

the material contained in the complaint, the issue before

the Fifth Circuit was purely legal, and no unresolved issues

of material fact existed.

Calhoun cites Johnson v. Odom, 910 F.2d 1273 (5th

Cir. 1991) and Feagley v. Waddill, 868 F.2d 1437 (5th Cir.

1989) for the proposition that if other panels of the Fifth

Circuit were involved in this case, those panels would have

dismissed respondents’ appeal based upon unresolved

issues of material fact. Calhoun fails to point out that

Johnson and Feagley involved the denial of a motion for

summary judgment based only upon a qualified immunity

defense.

The order denying respondents’ motion to dismiss on

the grounds of absolute legislative immunity falls squarely

within the collateral order exception to the final judgment

rule, and is immediately appealable. This appeal raises the

question whether the complaint on its face states a claim

against any of ten elected officials. There are no ‘‘genuine

issues of fact’”’ pertinent to that inquiry. The motion to

dismiss, unlike a motion for summary judgment, “‘raises an

issue of law as to the sufficiency of the well pleaded allega-

tions of the complaint.’’ Simmons v. Peavy-Welsh Lumber

Company, 113 F.2d 812 (5th Cir. 1940), cert. denied, 311

U.S. 685 (1940). See also Rae v. Union Bank, 725 F.2d 478

(9th Cir. 1984) (‘‘[A] ruling on a motion to dismiss for

failure to state a claim upon which relief can be granted is

a ruling on a question of law, freely reviewable by the

courts of appeals.’’ Jd. at 479).

Presumably, Calhoun pled his best case in his com-

plaint, and if the facts there alleged do not defeat the

legislative immunity claims of each individual public of-

ficial, then that public official should be dismissed from

suit. Calhoun’s argument that the Fifth Circuit lacked

jurisdiction over an appeal seeking review of an order deny-

ing absolute immunity is without precedent and is not wor-

thy of this Court’s review.

3. The Fifth Circuit Correctly Disregarded Evidence

Not Presented to the District Court and Not Part of

the Record on Appeal.

Calhoun states in his petition, ‘“Thus, in order to ad-

dress the immunity issue, the Fifth Circuit conveniently ig-

nored the deposition testimony, affidavits and exhibits

which were part of the record and which the district court

reviewed, but were not before the Fifth Circuit given the

unusual procedural posture of the appeal.’’ (Petition, page

17). The Fifth Circuit ‘‘conveniently ignored’’ the deposi-

tion testimony, affidavits and exhibits because this

evidence was not submitted to the district court when .t

ruled on respondents’ motion to dismiss and it was

therefore not part of the record on appeal. Calhoun attemp-

ted to submit this evidence directly to the Fifth Circuit by

way of “record excerpts’ although none of this material

was part of the record at the time the district court decided

the motion to dismiss. In fact, the deposition testimony

that Calhoun sought to submit to the Fifth Circuit had not

even been taken at the time the court ruled on the motion

to dismiss.® Therefore, the deposition testimony, affidavits

and exhibits were not a part of the record and the district

court did not review these documents prior to ruling on

respondents’ motion to dismiss. Furthermore, this

evidence went to the motives of respondents which are ir-

relevant to the consideration of the absolute immunity

defense. Tenney.

Fed. Rule App. Proc. Rule 10(a) defines the record on

appeal:

The original papers and exhibits filed in the

district court, the transcript of the proceedings, if

any, and a certified copy of the docket entries

prepared by the clerk of the district court shall

constitute the record on appeal in all cases.

Only material which was in fact presented to and

considered by the district court is considered part of the

record on appeal. Garcia v. Marine Corporation, 432 F.2d 6

(5th Cir. 1970); Weissinger v. United States, 423 F.2d 795

(5th Cir. 1970); 16 Wright, Miller Cooper and Gressman,

Federal Practice and Procedure, Jurisdiction §3956 (1977)

at 386. An appellate court will not consider material not

considered by the district court, especially when a party

submits the material without leave to do so or in liev of fil-

ing a motion to supplement the record. Butterworth v.

8 The trial court denied defendants’ motion to dismiss on August 27,

1990. The depositions of M. Riemer Calhoun, Charlotte Carroll, James

C. Howei, Jr. and Thomas L. Frye were taken on November 13, 1990.

The deposition of Henry J. Rodriguez, Jr. was taken on September 24,

1990. Calhoun also attempted to introduce at the Fifth Circuit level a

transcript of the St. Bernard Parish Planning Department Public

Meeting which did not occur until September 6, 1990.

Bowen, 796 F.2d 1379 (llth Cir. 1986); Mitchell v.

Tradewinds Company, 289 F.2d 178 (5th Cir. 1961). As

Calhoun did in this case, submitting evidence not con-

sidered by the district court with a party’s brief on appeal

does not suffice to make that material part of the record on

appeal and does not substitute for a motion to supplement

the record. In Re: GHR Energy Corporation, 791 F.2d 1200

(5th Cir. 1986).

Even if the evidence submitted to the appellate court

consists of facts discovered since the district court’s ruling,

these newly discovered facts cannot be considered by the

appellate court. Fact finding and creation of the record are

functions of the district court and, therefore, the considera-

tion of newly discovered evidence is a matter for the

district court. Goland v. Central Intelligence Agency, 607

F.2d 339 (D.C. Cir. 1978), cert. den. 445 U.S. 927. Accord-

ingly, the Fifth Circuit correctly disregarded the evidence.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

HENRI WOLBRETTE

CHARLES T. WEIGEL, JR.

McGlinchey, Stafford,

Cellini & Lang

643 Magazine Street

New Orleans, Louisiana 70130

(504) 586-1200

Counsel for Respondents

A-1

APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

M. RIEMER CALHOUN, JR.

AND SOUTHLAND PARK

APARTMENTS, A LOUISIANA

PARTNERSHIP

IN COMMENDAM

CIVIL ACTION

NO. 89-5160

SECTION 6

VERSUS

ST. BERNARD PARISH: .

RANDOLPH T. ODINET, °

RONALD J. HAGGERTY, °

LOUIS P. WINESKI, JR., ° MAG. DIV.

ROBERT J. CRITASI, JOHN A. *

METZLER, JR., GUS L. RIESS, *

JAMES J. LICCIARDI, JR., °

FLOYD J. LANDRY, ASHLEY *

HENDERSON AND HENRY J. *

RODRIGUEZ, JR., IN- °

DIVIDUALLY AND AS °

MEMBERS OF THE ST. °

BERNARD PARISH POLICE °

JURY: MARTHA L. °

CAZAUBON, INDIVIDUALLY *

AND AS DIRECTOR OF THE *

ST. BERNARD PARISH °

DEPARTMENT OF SAFETY °

AND PERMITS °

A-2

COMPLAINT FOR INJUNCTIVE

AND DECLARATORY RELIEF,

WRIT OF MANDAMUS, AND DAMAGE

The Complaint of M. Riemer Calhoun, Jr., a citizen of

the State of Louisiana, and Southland Park Apartments, A

Louisiana Partnership Jn Commendam (collectively

“Calhoun’’) with respect represents:

PARTIES

The following are made defendants herein:

(a) St. Bernard Parish, a political subdivision duly

organized and existing under the laws of the State of

Louisiana;

(b) Ralph T. Odinet, a Louisiana citizen who is a