Aitchison v. Raffiani

Page 96

708 F.2d 96

Archie W. AITCHISON, Appellant, v. Louis RAFFIANI, individually and in his capacity as Mayor of

the Borough of Fair Lawn; Florence Dobrow, individually and

in her capacity as Deputy Mayor and Councilwoman of the

Borough of Fair Lawn; Bernard Hersh, individually and as

Councilman of the Borough of Fair Lawn; Irving Bienstock,

individually and as Councilman of the Borough of Fair Lawn;

Henry Shapiro, individually and as Councilman of the Borough

of Fair Lawn; Frank Peruggi, individually and in his

capacity as Manager of the Borough of Fair Lawn; Jack

Ballan, individually and in his capacity as Borough Attorney

of the Borough of Fair Lawn; and the Borough of Fair Lawn,

a municipal corporation of the State of New Jersey, Appellees.

Florence DOBROW and Borough of Fair Lawn, Third-party Plaintiffs, v. FIREMAN'S FUND INSURANCE COMPANIES (AMERICAN INSURANCE

COMPANY), Third-party Defendant.

Louis RAFFIANI, individually and as Mayor of the Borough of

Fair Lawn; Bernard Hersh, individually and as Councilman of

the Borough of Fair Lawn; Irving Bienstock, individually

and as Councilman of the Borough of Fair Lawn; Henry

Shapiro, individually and as Councilman of the Borough of

Fair Lawn; and Frank Peruggi, individually and as Borough Manager of the Borough of Fair Lawn; and Jack Ballan, individually, Third-party Plaintiffs v. FIREMAN'S FUND INSURANCE COMPANIES (AMERICAN INSURANCE

COMPANY), Third-party Defendant.

No. 82-5380.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

March 1, 1983.

Decided May 13, 1983.

Robert F. Gallo, Douglas C. Willer, Oakland, N.J., for appellant.

Jerome M. Lane, Hackensack, N.J., for All appellees except Jack Ballan.

Donald R. Conway, Hackensack, N.J., for Florence Dobrow.

Jack Ballan, pro se.

Before HUNTER, WEIS and BECKER, Circuit Judge.

OPINION OF THE COURT

WEIS, Circuit Judge.

In this suit for damages under the Civil Rights Act of 1871, 42 U.S.C. Secs. 1983 and 1985(3), we hold that the members of a borough council, the mayor, and the borough attorney are entitled to absolute immunity for acts done in a legislative capacity. We also conclude that in a suit of this nature brought against a municipality and its office holders in their official capacities, the appropriate statute of limitations is that provided by state law for actions against governmental entities. Finding ourselves in agreement with the district court, we affirm.

The plaintiff's complaint asserted a claim for damages for wrongful discharge from his position as an employee of the Borough of Fair Lawn, New Jersey. Named as defendants were the mayor, members of the borough council, the borough attorney, the borough manager, and the municipality itself. The district court dismissed the case, holding that the individuals were immune and that the claim against the borough and the defendants in their official capacities was barred by the statute of limitations.

Plaintiff Archie Aitchison was appointed to the position of assistant building inspector for Fair Lawn in 1974. In September 1977, alleging aims of efficiency and economy, the mayor and council introduced an ordinance, effective October 30, 1977, that abolished the position of assistant building inspector. Plaintiff was informed of the borough's action in early September, and on September 27, 1977 the ordinance was passed on a second and final reading. That same day, Aitchison filed a request for a hearing with the Civil Service Commission. Plaintiff contended that his removal was politically motivated and in bad faith, serving as a subterfuge to avoid the civil service hearing process. A few weeks later, plaintiff also filed suit in the New Jersey Superior Court asking that the ordinance be declared unconstitutional.

The Civil Service Commission conducted a hearing and in October 1978 issued an order that plaintiff be reinstated to his position with back pay. The Commission found that the action of the borough was not in good faith and was an attempt to circumvent the state's civil service statute. In addition to back pay, the Commission allowed counsel fees in an amount equal to that plaintiff had earned in mitigation during the illegal layoff. The Commission's decision was affirmed by the superior court and the state supreme court denied certification.

On November 19, 1979, plaintiff filed his complaint in the federal district court seeking compensatory as well as punitive damages, and counsel fees. In the first of a series of rulings, the court determined that the individual defendants were entitled to absolute immunity as participants in the legislative process. The court reached this conclusion on the grounds that the members of council and the mayor had voted for the ordinance, and the borough attorney had advised the council with respect to the ordinance. With this ruling the court also dismissed the borough manager.

The claims against the borough and defendants in their official capacities were found to be governed by the two year statute of limitations in the New Jersey Tort Claims Act, N.J.Stat.Ann. Sec. 59:8-8 (West 1982). After a hearing, the court determined that plaintiff was not entitled to tolling of the statute because of fraudulent concealment by defendants, or because plaintiff did not "discover" the existence of his action until he uncovered certain documentary evidence. Since the complaint had been filed more than two years after the cause of action accrued, the court dismissed the complaint as against the borough and its officials. When all of the plaintiff's claims had finally been resolved through this series of orders, the court ordered dismissal of the entire case. ¹

I. LEGISLATIVE IMMUNITY

Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), held that members of a state legislature have absolute immunity from suits for damages under sections 1983 and 1985(3). The Supreme Court reviewed the common law tradition of legislative freedom from damage suits arising out of official action and concluded that Congress did not intend to limit this immunity by its enactment of the civil rights statutes. The Court also observed that "[l]egislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence, but for the public good." Id. at 377, 71 S.Ct. at 788. It matters not that the legislators acted in bad faith. "The claim of an unworthy purpose does not destroy the privilege." Id.

In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1971), this doctrine of absolute immunity was held to include appointed regional members acting in a legislative capacity for an agency created by a compact between two states. The Court concluded that the Tenney rationale was "equally applicable to federal, state and regional legislators," id. at 405, 99 S.Ct. at 1179, but the Court expressly left open the issue of absolute immunity for "individuals performing legislative functions at the purely local level," id. at 404 n. 26, 99 S.Ct. at 1178 n. 26.

Since Lake Country, however, six courts of appeals have held that members of local municipal councils or similar bodies are entitled to absolute immunity when acting in a legislative capacity. See Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir.1983); Espanola Way Corp. v. Meyerson, 690 F.2d 827 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1431, 75 L.Ed.2d 791 (1983); Kuznich v. County of Santa Clara, 689 F.2d 1345 (9th Cir.1982); Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir.1981), cert. denied, 445 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982); Bruce v. Riddle, 631 F.2d 272 (4th Cir.1980); Gorman Towers v. Bogoslavsky, 626 F.2d 607 (8th Cir.1980). No appellate decision after Lake Country has held otherwise.

In extending immunity to municipal legislators, the court of appeals in Gorman Towers could "perceive no material distinction between the need for insulated decisionmaking at the state or regional level and a corresponding need at the municipal level." 626 F.2d at 612. Indeed, the opinion noted that because municipal legislators are closer to their constituents they are more vulnerable to litigation and its inhibiting effect. Id. Moreover, when municipal officials are elected, rather than appointed as in Lake Country, the argument for immunity becomes stronger. The electoral process itself acts as a powerful restraint on improper legislative action. Id.; see also, Lake Country, 440 U.S. at 409, 99 S.Ct. at 1181 (Blackmun, J., dissenting).

We find Gorman Towers and the opinions of the other courts of appeals persuasive. Recognizing the strong authority of Lake Country, we hold that members of a municipal council acting in a legislative capacity are absolutely immune from damage suits under section 1983. For the same reasons, we find those acting in a legislative capacity are immune from suit under section 1985(3) as well. ² See Tenney v. Brandhove, supra; City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1256-57 (5th Cir.1976).

The question then arises as to whether the mayor and the borough attorney are entitled to share in this legislative immunity. We conclude that they are, to the extent their activities are legislative in character.

In appraising the mayor's need for absolute immunity, we look to the function the individual performs rather than his location within a particular branch of government. For example, Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), held that an administrative law judge was to be given judicial immunity even though employed by the executive department, and Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), accorded legislative immunity to justices of the Virginia Supreme Court in connection with their promulgation of disciplinary rules for the bar.

A mayor, although generally the...