Amicus Curiae Brief — Bogan v. Scott-Harris

Supreme Court, U.S.

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pant AUG 14 1997

No. 96-1569

CLERK

In the Supreme Court of the United States

October Term, 1997

MARILYN RODERICK, AND DANIEL BOGAN,

Petitioners,

Vv.

JANET SCOTT-HARRIS,

Respondent.

AMICUS CURIAE BRIEF

On Behalf of the City of Fall River, Massachusetts

Thomas F. McGuire, Jr.

Corporation Counsel

City of Fall River

One Government Center

Fall River, Ma 02722

Mary E. O'Neil

First Assistant Corporation Counsel

City of Fall River

One Government Center

Fall River, Ma 02722

August 12, 1997

No. 96-1569

In the Supreme Court of the United States

October Term, 1997

MARILYN RODERICK, AND DANIEL BOGAN.

Petitioners,

v.

JANET SCOTT-HARRIS,

Respondent.

AMICUS CURIAE BRIEF

On Behalf of the City of Fall River, Massachusetts

INTEREST OF THE AMICUS CURIAE

Facing the reality of a ten percent cut in local aid from the State,

acting Mayor Daniel Bogan asked the City Administrator for

alternative plans to deal with the impending fiscal constraints. One

plan was suggested by the plaintiff, among other savings she

suggested reducing the number of hours that nurses would be

available in the schools and senior centers in the City. The plan

Bogan settled upon resulted in the elimination of 135 positions, 27

of which were occupied. One of those positions was the Plaintiffs.’

Before being able to present a budget to the City Council for

passage, Bogan was required to eliminate any positions in City

ordinance. Otherwise, he would be forced to finance those

positions for the coming fiscal year. And thus, no savings would be

realized Bogan did this. The committee on ordinances, which

Councilor Marilyn Roderick chaired, reported favorably on the

elimination of the position. Later the City Council passed the

budget which entailed eliminating the positions noted above. And

Bogan signed it. The hallmark of a “traditional legislative function”

is its creation of prospective, legislative-type policies rather than the

quotidian task of applying existing policy.” See Prentiss v. Atlantic

Coastline Co., 211 U.S. 210, 226 (1908)(“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.”)

Bogan and Roderick have tried to assert their absolute immunity

from the inception of this litigation Now, saddled with

' Albeit at a lower salary. the Plaintiff was the only individual offered another

considerable financial burdens and personal reserves depleted, they

stand before the United States Supreme Court still asserting their

absolute immunity. The City’s interest is simple, if a budget is

passed which results in any attrition, how much additional money

should be appropriated to the Law Department? And, how much

time should a local legislator expect to spend litigating as opposed

to legislating?

SUMMARY OF ARGUMENT

This case involves two local elected officials performing a purely

legislative function, a councilwoman voting on passage of a city

ordinance and a mayor completing the legislative process by signing

the city ordinance. The enactment of budgetary items is a

fundamental part of the legislative process and local officials

performing this legislative function should be granted absolute

immunity. Without such immunity local legislators would avoid the

tough call, the controversial issues, for fear of the threat of

litigation and the costly reality of defending oneself. Supreme

Court of Virginia v. Consumers Union of the United States, 446

U.S.719, 732 (1980).

This Court has found absolute immunity for each legislative

level presented to it. See Kilbourn v. Thompson, 103 US. 168,

202-204 (1880)(federal level), Tenney v.Brandhove, 341 U.S. 367,

379 (1951)(state level), Lake Country Estates v. Tahoe Regional

Planning Agency, 440 U.S. 391,406 (1979)(regional level). A local

legislator and local legislative acts deserve the same protections

afforded to those at the regional, at the state, and at the federal

levels. To do otherwise is to decide that local legislators are a

lesser form of representative. In granting absolute immunity the

Court should look to the function of the act rather than the status

or level at which the official serves. Roderick’s vote in passage of

the city ordinance and Bogan’s signature upon the ordinance are

quintessential legislative functions. As long as the act is legislative

it does not matter who performs it. See Lake Country, supra, 440

US. at 404-405.

The City’s interest in this case is to ensure the proper operation

of government. To that end, it requires the recognition that local

legislators and local legislative acts need the protection afforded to

other legislators. To promote free debate and the proper operation

of government a legislator must act for the City’s good, not for fear

of his or her harm.

The decision of the First Circuit in this case, while claiming to

give absolute immunity to local officials, actually affords them a

standard of qualified immunity and moreover, a qualified immunity

that has a subjective standard. If allowed to stand the decision of

the First Circuit would have a chilling effect upon the local

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legislative process. And, it is not unreasonable to believe that

otherwise qualified candidates would think better of seeking local

elective office. To avoid such a result this Court should extend

absolute immunity to local officials for acts performed within the

parameters of the legislative process.

ARGUMENT

| FEDERAL, STATE, AND REGIONAL LEGISLATORS WHO

PERFORM LEGISLATIVE FUNCTIONS ARE ENTITLED TO

ABSOLUTE IMMUNITY. THIS REASONING IS NO LESS

APPROPRIATE FOR LOCAL ELECTED OFFICIALS.

The concept of immunity is neither novel no: new. This Court

has long recognized the doctrine of state immunity set forth in the

Eleventh Amendment. This Court’s decisions regarding Eleventh

Amendment sovereign immunity recognize the “respect owed [the

States] as members of the federation.” Puerto Rico Aqueduct and

Sewer Authority v Metcalf & Eddy, Inc., 506 U.S. 139, 146,(1993).

Although not directly applied to counties, Mt. Healthy City School

District v. Doyle, 429 U.S. 274, 280(1977), Eleventh Amendment

immunity has been extended to counties where a judgment against

them would impact the State treasury. See, e.g., Edelman v.

Jordan, 415 US. 651 (1974)\(Eleventh Amendment bars suit

against state and county officials for retroactive award of welfare

benefits).

The doctrine of immunity also exists in the common law.

Spallone v United States, 493 U.S. 265, 278 (1990). “{T}he

immunity of legislators from civil suit for what they do or say as

legislators has its taproots in the parliamentary struggles of 16th-

and 17th-century England, such immunity was consistently

recognized in the common law and was taken as a matter of course

by our Nation’s founders.” Lake Country Estates v. Tahoe

Regional Planning Agency, 440 U.S. 391, 403 (1979).

Further, federal legislative immunity exists in the Speech or

Debate clause. Powell v. McCormack, 395 US. 486, 503

(1969)(“[ T]he legislative immunity created by the Speech or Debate

Clause ... insures that legislators are free to represent the interests

of their constituents without fear that they will be later called to

Thus, legislative

immunity exists statutorily, constitutionally, and by common law.

task in the courts for that representation.”’).

Indeed, “[ijt was deemed so essential for representatives of the

people that it was written into the Articles of Confederation and

later into the Constitution.” Tenney, 341 U.S. at 372. The Civil

Rights Act did-not abrogate this sovereign immunity. Tenney 341

US. at 376

Immunity exists not as a shield for scoundrels, but as a sword

for the public good. This Court’s decisions have recognized that

without immunity, the peoples’ right to representation is

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undermined. Lake Country, supra, 440 U.S., at 404-405, Tenney,

supra, 341 U.S. at 377.’ Without immunity legislators would avoid

the tough call, the controversial issues, for fear of the threat of

litigation and the costly reality of defending oneself. Supreme

Court of Virginia v. Consumers Union of the United States, 446

U.S. 719, 732 (1980).

The threat of litigation will now become a part of the democratic

process and by doing so, will distort it. At the very least, it will

distract the legislators. See Tenney, 341 U.S. at 377 (affording

absolute immunity to legislators obviates the fear that they will be

“subjected to the cost and inconvenience and distractions of a

trial”). It is not merely the possible result of the litigation that is

feared, it is also the prospect of having to defend oneself.

Dombrowski v. Eastland, 387 U.S. 82, 85 (1967).

If a legislative scoundrel exists, granting legislative immunity

does not remove the significant checks against him or her. If a

~ As Justice Frankfurter wrote:

The reason for the privilege is clear. It was well summarized by

James Wilson, an influential member of the Committee of Detail

which was responsible for the provision in the Federal Constitution.

“In order to enable and encourage a representative of the public to

discharge his public trust with firmness and success, it is indispensably

necessary, that he should enjoy the fullest liberty of speech, and that he

should be protected from the resentment of every one. however powerful.

to whom the exercise of that liberty may occasion offense.” II Works of

James Wilson (Andrews ed. 1896) 38.

Tenney, 341 U.S. at 373

proper suit lies, it can lie against the municipality which does not

have immunity. See Lake Country Estates, 440 U.S. at 405 n.29

(citing Monell v. New York City Dep't of Social Serv., 436 U.S.

658, 663 (1978), Aitchinson v. Raffiani, 708 F. 2d 943, 953 (3d

Cir. 1983 ) (an action can still lie against a municipality regardless

of the legislator’s absolute immunity). If a real scoundrel appears a

criminal remedy exists for willful deprivations of constitutional

rights under color of state law. 18 U.S.C. sec. 242. Imbler v.

Pachtman, 424 U.S. 409, 429 (1975); see United States v. Gillock,

445 US. 360, 372 (1980)(no authority for extension of official

immunity to criminal cases). Perhaps, the most appropriate check

in a vital democracy is that of the ballot box. See Jenney, supra,

341 U.S. at 378 (“In times of political passion, dishonest or

vindictive motives are readily attributed to legislative conduct and

as readily believed Courts are not the places for such

controversies. Self-discipline and the voters must be the ultimate

reliance for discouraging or correcting such abuses.”), see also,

e.g., Rateree v. Rockett, 852 F. 2d 946, 951 (7th Cir. 1988)(“one

recourse in dealing with legislators who hide behind their shield of

immunity and vote ‘improperly’ is of course, a resort to the ballot

box.”).

Further, this Court has determined that at some point the need

for absolute immunity outweighs the potential harms attendant to it.

See Pierson v. Ray, 386 U.S. 547 (1967)(absolute immunity for

judges), Jmbler v. Pachtman, 424 U.S. 409, 428 (1975)(in a case

involving absolute immunity for prosecutors, the Court found that it

is “better to leave unredressed the wrongs done by dishonest

officers than to subject those who try to do their duty to the

constant dread of retaliation’’).

There are myriad examples of how this immunity has been

applied. In the Legislative context, this Court has seen fit to

determine that only absolute immunity would be the proper

standard. Tenney, supra, 341 U.S. at 399. Further, with each

legislative level presented to it, this Court has found absolute

immunity. See Kilbourn v. Thompson, 103 U.S. 168, 202-204

(1880)(federal level); Tenney, 341 U.S. at 379 (state level), Lake

Country Estates, 440 U.S. at 406 (regional level). It is the similarity

of the function that prompted similar treatment. 440 US. at 406.

Given the Court’s analysis that the Speech and Debate clause

cloaks legislators only when acting in their legislative capacity, the

Court has fashioned a functions test. Forrester, 484 U.S. at 222,

see also Buckley v. Fitzsimons, 509 U.S. 259, 269 (1993).

Legislators who act outside of legislative parameters are entitled

to no greater immunity than that of the executive branch: qualified

immunity. But just as a legislator is treated differently when he or

she acts non-legislatively, so too is an executive officer who acts

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non-executively. If an executive officer acts legislatively, he should

be afforded the same treatment as a legislator Cf Butz v.

Economou, 438 U.S. 478 (1978) Although involving a Bivens

action and not a sec. 1983 action, the court applied the same

reasoning for immunity analysis and recognized absolute immunity

for individuals performing judicial and prosecutorial functions

within the Department of Agriculture), Supreme Court of Virginia,

446 U.S. at 734 (Virginia Supreme Court Judges entitled to the

absolute immunity afforded a legislator because they were

essentially functioning as legislators).

The protections afforded elected officials can be seen as an

umbrella; they shield such individuals, but only if they are acting in

a legislative fashion. The umbrella though wide, is not all

encompassing. There are only limited instances in which an

executive acts legislatively. Such an instance exists here. See, e.g.,

Buckley v. Valeo, 424 U.S. 1, 121 (1976) (No complete separation

of powers within Constitution as “(t]he President is a participant in

the law-making process by virtue of his authority to veto bills

enacted by Congress.”), Edwards v. United States, 286 U.S. 482,

491 (1932)(President’s signing into law of bill passed by Congress

is a legislative act). The Fifth Circuit has specifically addressed this

issue:

“The mayor’s veto, like the veto of the President or a

state governor, is undeniably a part of the

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legislative process. It differs only that it takes place

at the local level. When the mayor exercises his

veto power, it constitutes the policy-making decision

of an individual elected official. It is as much an exercise

of legislative decision making as is the vote of a member

of Congress, a state legislator, or a city councilman.”

Hernandez v. City of Lafayette, 643 F.2d 1188, 1194 (1981).

Roderick’s vote was necessary in order to pass the municipal

budget. Bogan’s endorsement was necessary in order to complete

the legislative process. Without the votes from the Council no

budget could pass. Without the Mayor’s endorsement no budget

could take effect. To permit disparate treatment of the parties here

puts form over substance. Although the status of the individual is

significant, it is not controlling. It is the function of the act, not the

title of the actor that determines the proper level of immunity

available. Harlow v. Fitzgerald, 457 U.S. 800, 810,(1982)( “... in

general our cases have followed a ‘functional’ approach to

immunity law); see Wood v. Strickland, 420 U.S. 308, 322

(1975)(where this Court applied a function test in determining that

a local school board would be entitled to only qualified immunity as

they were applying disciplinary policy to a particular individual as

opposed to legislating the policy). This Court has found immunity

for legislators only when they are performing their legislative

function. See, e.g. Eastland v. United States Servicemen’s Fund,

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421 U.S. 491, 95 S. Ct. 1813, 44 fL. Ed. 2d 324 (1975). And, for

judges when they are performing an adjudicatory function. See,

e.g. Stump v. Sparkman, 435 U.S. 349 (1978). Further, absolute

immunity has been extended to the Executive Branch. And this

extension has gone well beyond its application to the Presidency.

Nixon v. Fitzgerald, 457 U.S. 731 (1982). Prosecutors and others

similarly situated receive absolute immunity; as do executives who

perform adjudicatory functions. Butz, supra. The extension of

immunity here is premised on the acts, not the actor, for this Court

has made clear that qualified immunity is the norm for executives.

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

Il LESS THAN ABSOLUTE IMMUNITY WILL SERIOUSLY

IMPAIR A CITY’S ABILITY TO GOVERN.

The city is not arguing that an executive should receive absolute

immunity for his or her executive actions, for the city recognizes

that the greater power inherent in the Executive “affords a greater

potential for a regime of lawless conduct.” Butz, supra, 438 at 506.

What the city is arguing is that where, as here, the Executive is

merely playing a role in completing a quintessentially legislative

process, he should be afforded the same protections given to the

Legislature. This comports with the function analysis generally used

by this Court. See Gravel v. United States, 408 U.S. 606, 625

ee ee en

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(1972)(“{S]enators and their aides were absolutely immune only

when performing ‘acts legislative in nature,’ and not when taking

other ets even ‘in their official capacity.”; See e.g. Supreme Court

of Virginia, supra, 446 U.S. at 731-737(judges).

This Court has seen fit to extend absolute immunity to

Congress, to State Legislators, and to regional legislators. Lake

Country, supra, 440 U.S. at 404 - 405. There is no sensible line of

demarcation between a regional legislator and a municipal one. To

suggest one, prompts the query, what liability would Mr. Smith

have faced if he decided to legislate at home and not go to

Washington?

If the premise that Congressmen need the protection of absolute

immunity is sound, than its application to local legislators is equally

sound. “Freedom of speech and action in the legislature [is] taken

as a matter of course by those who severed the Colonies from the

Crown and founded our Nation.” Jenney, supra, 341 U.S. at 372

The city officials here come from a long state history of freedom of

speech in the Legislature:

“In perhaps, the earliest American case to consider the

import of the legislative privilege, the Supreme Judicial

Court of Massachusetts, interpreting a provision of the

Massachusetts Constitution granting the rights of freedom

of speech and debate to state legislators, recognized that

the privilege secured by it is not so much the privilege of

the house as an organized body, as of each individual

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member composing it, who is entitled to this privilege,

even against the declared will of the house. For he does

not hold this privilege at the pleasure of the house, but

derives it from the will of the people ...”

Spallone, supra at 379, (quoting Coffin v. Coffin, 4 Mass. 1, 27

(1808).

The Legislature and legislative acts can be untidy affairs, saddled

with a fair degree of acrimony. This is no less so at the local level.

See Gorman Towers, Inc. v. Bogoslavsky, 626 F. 2d, 606,

612(1980) (“Because municipal legislators are closer to their

constituents than either their state or federal counterparts, they are,

perhaps, the most vulnerable to and least able to defend lawsuits

caused by the passage of legislation.” (quoting Lagon v. Maryland,

448 F. Supp. 935, 947 (D. Md. 1977).

A local legislator and local legislative acts deserve the same

protections afforded to those at the regional, at the state, and at the

federal levels. To deny these protections here, given the rationale

for their existence at the other levels, is to decide that local

legislators are a lesser form of representative. It is to say that they

are not only different in degree, but are also somehow different in

kind. And, so different that even though they face the same perils

as those on the regional, on the state, and on the federal level, they

are to be separated from these groups and left to fend with what

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has already been determined to be an insufficient level of protection

for legislators: qualified immunity.

To now apply a literalist approach and determine that as the

Speech or Debate Clause does not mention local legislators, they

should not be given absolute immunity, is to call into question the

precedent which exists for absolute immunity for acts outside

Congress, and the absolute immunity for congressional aides. See

Harlow, supra, 457 U.S. at 823. Further, the absence of express

provisions regarding local legislators and the dearth of such early

common law may be attributed to a very simple cause, “the paucity

of early legal actions against local legislators for legislative acts was

due to relatively few early local legislative bodies and undeveloped

jurisprudence.” Bruce, supra, 631 F. 2d at 277.

The logic that supports absolute immunity for local legislators

applies equally well to a local executive performing legislative acts.

As long as the act is legislative it does not matter who performs it.

See Lake Country, supra, 440 U.S. at 404 - 405,(where a hybrid

board of executive and legislative individuals were afforded

absolute immunity).

The adoption of 42 U.S.C. 1983 did not abrogate common law

legislative immunity. Tenney, supra, 371 U.S. at 377. While some

may ask what becomes of the plaintiff if absolute immunity applies

here. The city answers: the same thing that would happen to such a

16

plaintiff poised against a regional group, a state legislature, and

Congress.

The City’s interest in this case is simple: to ensure the proper

operation of government. To that end, it requires the recognition

that local legislators and local legislative acts need the protections

afforded to other legislators. To promote free debate and the

proper operation of government a legislator must act for the city’s

good, not for fear of his or her harm. To deny immunity is to

encourage those acting legislatively to act with the narrow view of

private monetary concerns, and not with the more appropriate focus

- that of the public’s needs. Spallone, supra, 493 U. S. at 280.

The First Circuit’s opinion does not guide a City. To find that

the passage of a municipal ordinance necessary to complete the

budget process is not a legislative act, is to misperceive the

legislative process. See Mass. Gen. L. Ann. ch. 43, sec. 55 (1994),

Mass. Gen. L. Ann. ch 44 sec. 32 (1994). To further find that

although absolute immunity was appropriate here, it was correctly

applied post tral, is to misperceive the point of absolute immunity

Absolute immunity is to be raised at the earliest stages of litigation

for the immunity is not just from any judgment, but from the burden

of having to defend oneself. Supreme Court of Va.,supra, 446 U.S.

at 731-32, Dombrowski,supra, 387 U.S. at 85 (“legislators engaged

in the sphere of legitimate legislative activity should be protected

a

al

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not only from the consequences of litigation’s results but also from

the burden of defending themselves”). A city in the First Circuit is

now instructed that the statutorily mandated passage of a municipal

budget is not a legislative act. It is further instructed that if any of

its elected officials wish to assert absolute immunity they may do

so, but only after trial. This is no guidance at all.

But, most chilling to a City is the First Circuit’s pronouncement

that they have effectively eschewed a functions test in favor of a

motivations test. A City can now look forward to discovery and

litigation around the motivations of individual municipal officials

Justice Scalia, in a case involving different issues than those

presented today opined on the futility of venturing to find the sole

motivation of an individual legislator:

But the difficulty of knowing what vitiating purpose

one is looking for is as nothing compared with the

difficulty of knowing how or where to find it. For

while it is possible to discern the objective “purpose”

of a statute (i.e. the public good at which its

provisions appear to be directed), or even the formal

motivation for a statute where that is explicitly set forth

(as it was, to no avail, here), discerning the subjective

motivation of those enacting the statute is to be honest,

almost always an impossible task. The number of possible

motivations, to begin with, is not binary, or indeed even

finite. In the present case, for example, a particular

legislator need not have voted for the Act either because

he wanted to foster religion or because he wanted to

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improve education. He may have thought the bill would

provide jobs for his district, or he may have wanted to

make amends with a faction of his party he had

alienated on another vote, or he may have been

a close friend of the bill’s sponsor, or he may have

been repaying a favor he owed the Majority Leader,

or he may have hoped the Governor would appreciate

his vote and make a fundraising appearance for him,

or he may have been pressured to vote for a bill he

disliked by a wealthy contributor or by a flood

of constituent mail, or he may have been seeking

favorable publicity, or he may have been reluctant

to hurt the feelings of loyal staff members who worked

on the bill, or he may have been settling an old score

with a legislator who opposed the bill, or he may have

been mad at his wife who opposed the bill, or he may

have been intoxicated and utterly unmotivated when

the vote was called, or he may have accidentally voted

“yes” instead of “no,” or, of course, he may have had

(and very likely did have) a combination of some of the

above and many other motivations. To look for the sole

purpose of even a single legislator is probably to look

for something that does not exist.

- Edwards v. Aguillard, 482 US. 578, 637 (1987)Scalia, J.,

dissenting)

The First Circuit has now decided a case which calls into

question a very basic tenet of our democracy. As Justice

Frankfurter wrote, “it is not consonant with our scheme of

government for a court to inquire in to the motives of legislators.”

19

Tenet, 341 US at 377 (citing Flatter, 6 Crunch at 130). Individual

motivations are irrelevant to an absolute immunity inquiry. /d.

Further, the First Circuit while claiming to give absolute

immunity to municipal officials actually affords them a standard of

qualified immunity and moreover, a qualified immunity that has a

subjective standard. Effectively, the First Circuit has returned to

the pre-Harlow standard Harlow v. Fitzgerald, 457 U.S. 800

(1981). And, it did so contrary to the guidance of this Court. See

Dombrowski, supra, 421 U.S. at 508-509, Tenney, 341 U.S. at 377.

When the Court last addressed this issue, it found absolute

immunity for regional legislators. Lake Country, supra, 440 US. at

404-405. And, more recently, in Spal/lone, supra, 493 U.S., at 406,

it reserved the question. Lake Country proves illustrative on two

levels. One, it applied absolute immunity to regional legislators

And two, the regional legislative board that it applied absolute

immunity to was a hybrid of legislative and executive members.

This case is the logical next step to Lake Country. Since Lake

Coury, the Courts of Appeals have unanimously held that local

legislators are entitled to absolute legislative immunity.” See, e.g.,

Fry v. Board of City Commissioners, 7 F. 3d 936, 942 (10th Cir,

1993), Acevedo-Cordero v. Cordero-Santiago, 958 F. 2d 20, 22

(1st Cir. 1992), Goldberg v. Rocky Hill, 973 F. 2d 70 (2d. Cir.

1992)(dicta), Gross v. Winter, 876 F. 2d 165, 169 (D.C.Cir. 1989),

20

Haskell v. Washington Township, 864 F. 2d 1266, 1277 (6th Cir.

1988)-Aitchison, 708 F. 2d at 98-99; “Reed v. Shorewood, 704 F.

2d 943, 952-953 (7th Cir. 1983), Espanola Way Corp. v.

Meyerson, 690 F. 2d 827, 829 (11th Cir. 1982), cert denied, 460

U.S. 1039 (1983), Kuzinich v. County of Santa Clara, 689 F. 2d

1345, 1349-1350 (9th Cir. 1982), Hernandez v. Lafayette, 643 F.

2d 272, 274-280 (Sth Cir. 1980), cert. denied, 455 U.S. 907

(1982), Bruce v. Riddle, 631 F 2d 272, 279 (3rd Cir.

1980),Gorman Towers, Inc. v. Bogoslavsky, 626 F. 2d. 607, 611-

614 (8th Cir. 1980). That it is the rule in the circuits that absolute

immunity is afforded local legislators for their legislative acts

supports the City’s position SHELDON H. NAHMOD, Civil

Rights and Civil Liberties Litigation, 14 (1991).

Without clear, sensible guidelines a City’s democracy is

distorted. The ramifications are serious, particularly given the

impact they will have on the City’s budget. “Ordering budget

priorities is a complex process subject to many pressures and

resulting in many compromises. Budgets are written to the clangor

of many axes grinding ... Each line item in a budget may affect the

interests of a few people intensely, but a budget expresses general

policy by balancing the competing claims of hundreds of thousands

* In Aitchison, a case factually similar to this one, the Court found that the

duties. Aitchison at 99.

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of line items.” Rateree v. Rockett, 630 F. Supp. 763, 771 (N_D. Ill,

1986), aff'd, 852 F. 2d 946 (7th Cir. 1988). Given the First

Circuit’s decision it is not unreasonable to believe that any

intelligent, qualified individual would think better of seeking

elective office. Harlow, supra, 457 U.S. at 817. Municipal office

should be sought by more than just the judgment proof

CONCLUSION

For the foregoing reasons, the Amicus Curiae respectfully

requests that this Court hold that local officials are entitled to

absolute immunity for those actions that are quintessentially

legislative. The Amicus Curiae respectfully requests ‘nat the

judgments against these individual defendants be reversed and

vacated.

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Dated August 12, 1997

Respectfully submitted,

THOMAS F. MCGUIRE, JR

CORPORATION COUNSEL

CITY OF FALL RIVER

ONE GOVERNMENT CENTER

FALL RIVER, MA 02722

(508) 324-2650

MARY E. O’NEIL

FIRST ASSISTANT CORPORATION COUNSEL

CITY OF FALL RIVER

ONE GOVERNMENT CENTER

FALL RIVER, MA. 02722

(508) 324-2650

Counsel for amicus curiae, City of Fall River