United States District Court, N. D. New York.July 9, 1982542 F.Supp. 1331 (Approx. 11 pages)
542 F.Supp. 1331
United States District Court, N. D. New York.
Robert J. VISSER, Plaintiff,
v.
Armand MAGNARELLI, James C. Tormey, Jr., Joseph A. Nicoletti, Bernard J.Mahoney, John A. DeFrancisco, Walter J. Ludovico, Edward S. Nowakowski, JamesT. Walsh, James P. McCarthy, Nancy Larraine Hoffmann, individually andcollectively asconstituting the Common Council of the City of Syracuse, New York, and JosephFalge, Defendants.
No. 81-CV-1404 (HGM).
July 9, 1982.
Attorneys and Law Firms
*1331 McCrone & Davis, Syracuse, N. Y., for plaintiff; Jeffrey M. McCrone, Syracuse, N. Y., of counsel.
David M. Garber, Corp. Counsel, Syracuse, N. Y., for defendants-councilors; Anthony S. Bottar, Eleanor Theodore, Syracuse, N. Y., of counsel.
*1332 MEMORANDUM-DECISION AND ORDER
MUNSON, Chief Judge.
Plaintiff brought this civil rights action for injunctive and monetary relief to protect his position as City Clerk of the City of Syracuse, New York. This Court found in favor of plaintiff, and enjoined defendants-councilors from dismissing or failing to reelect him solely on grounds of his political affiliation. 530 F.Supp. 1165. The Court assumes the reader's familiarity with that opinion. Presently before the Court is plaintiff's motion for a determination of damages and costs.
I.
Plaintiff seeks only attorneys' fees as a part of his costs.142 U.S.C. s 1988 (1976), as amended by Equal Access to Justice Act, Pub.L.No.96-481, s 205(c), 94 Stat. 2330 (1980), provides in pertinent part that “(i)n any action or proceeding to enforce a provision of (42 U.S.C. s 1983, inter alia ), the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.” Section 1988's legislative history indicates that counsel fees should ordinarily be awarded to prevailing litigants, unless special circumstances would render an award unjust. S.Rep.No.94-1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5912 (Senate Report) (quoting Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (per curiam )). This liberal policy reflects Congress' purpose not only to penalize constitutional violators but to encourage resort to courts to seek judicial relief for such transgressions. Id.; Nadeau v. Helgemoe, 581 F.2d 275, 280 (1st Cir. 1978).
*1333 Properly interpreted, the Common Council majority's action falls outside the scope of absolute legislative immunity. Supreme Court language discusses the extent of the privilege only in general terms;3 no precise formulation exists to guide this Court. Having reviewed the available possibilities, the Court adopts the two-pronged analysis of Developments in the Law-Zoning, 91 Harv.L.Rev. 1427, 1510-11 (1978). Under that test, the Court must first discern “the type of underlying facts on which the decision is based,” and then consider “whether the government action results in a differentiable impact on specifiable individuals.” Id. at 1510.4
The action here was clearly administrative. The Republican councilors based their decision not to rehire Visser solely on the specific fact of his party affiliation. No consideration of the general qualifications of a city clerk pervaded the Council's decision. See id. at 1510-11 (distinguishing between legislative and administrative facts). Similarly, the Council's vote impacted only one individual-Visser. Even though the councilors' vote was the formal means of making their decision, their action can only *1334 be characterized as an administrative personnel matter, not legislative.
Section 3-106(2) of the Syracuse City Charter buttresses this conclusion. The section requires the Council to “adopt rules governing its officers and employees.”5 Similarly, other sections of the Charter describing the Council's duties reiterate the principle that the Council often involves itself in administrative housekeeping matters far removed from legislative acts. See, e.g., Charter s 8-106 (Council to prescribe hours that city offices are to be open to the public); id. s 3-109 (Council may require “the form in which ... proceedings and reports ... shall be issued”). Actions under these provisions, like the Council's non-rehiring of its chief employee, the City Clerk, involve no policy formulation. They are not legislative actions.
Legislative immunity failed to exempt a Congressman's unconstitutional employment dismissal in Davis v. Passman, 544 F.2d 865 (5th Cir. 1977), rev'd, 571 F.2d 793 (5th Cir. 1979) (en banc ), rev'd, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). Congressman Passman hired and then fired Shirley Davis as a deputy administrative assistant, writing her that he needed a man in that position. 544 F.2d at 867. Davis sued, alleging sex discrimination. The Fifth Circuit panel rejected the Congressman's claim that legislative immunity through the Speech or Debate Clause barred the suit.6 The court noted that Supreme Court precedent construing the clause refused to make legislative immunity for federal lawmakers all-pervasive.7 The panel limited legislative immunity to acts “intimately cognate to the legislative process” and held that “(w)hen members of Congress dismiss employees they are neither legislating nor formulating legislation. The fear of judicial inquiry into dismissal decisions cannot possibly affect a legislator's decisions on matters pending before Congress.” Id. at 879, 880.8
*1336 II.
A finding of a lack of absolute legislative immunity does not end the inquiry into personal liability for counsel fees. The legislative history of section 1988 indicates that proof of bad faith is necessary to render a defendant liable for fees in his individual capacity. Senate Report, supra, 1976 U.S.Code Cong. & Ad.News at 5913 n.7 (citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)). For the following reasons, this Court holds that a failure to meet the requirements of the good faith qualified immunity test generally available to other government officials, and extended to legislators acting in an administrative or executive capacity,9 satisfies Alyeska's bad faith standard.
The Wood Court concluded that if a defendant failed its test, “his action cannot reasonably be characterized as being in good faith.” Id.11 The similarity between Harlow, Wood and Vaughan justifies the conclusion that defendants failing the qualified immunity test may have attorneys' fees imposed on them personally.12
As a matter of law, the Republican councilors fail the official immunity defense. The law is clear on the issue of patronage employment practices. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), both forbade political firings for partisan reasons. Nor were the councilors unaware of the law. In January, 1981, Corporation Counsel David Garber explicitly warned the councilors against ousting Visser solely on the basis of his political affiliations, saying that such action would contravene Supreme *1338 Court precedent and could open the councilors to personal liability in a lawsuit.13
Nor is the law murky in failure to reappoint cases. Judge McCurn squarely held in Syracuse last summer that failure to reappoint solely for political reasons stands on a constitutional par with patronage dismissal practices. Brady v. Paterson, 515 F.Supp. 695, 699 (N.D.N.Y.1981). Judge McCurn did not decide Brady on a tabula rasa. He reviewed earlier cases on the issue in coming to his conclusion.14 Whether or not defendants read Brady, ignorance of the law is no excuse.15 This breach of the duty to know clearly established law in itself constitutes a failure to prove reasonable good faith, as does actual violation of that law.16
Only the Republican councilors are personally liable for plaintiff's counsel fees, because only they voted to remove Visser. In January, 1981, the first time Visser's position was threatened, Democratic councilor Nowakowski echoed Corporation Counsel Garber's advice that dismissing Visser could open councilors to personal liability, adding “I don't want to get involved in a lawsuit.”17 While no evidence was introduced explicitly explaining Democratic councilors' votes against Republican Falge in the election for a new City Clerk, those remarks of a year earlier provide circumstantial evidence of their reasons.18 Nor is any explanation needed. Simply by voting no to Falge, Democratic councilors avoided violating plaintiff's constitutional rights.
III.
The actual calculation of counsel fees is simple. Defendants do not challenge any specific portion of the request for attorneys' fees and expenses. In his affidavit, plaintiff's counsel shows 67 hours devoted to this case. His fee of $75 an hour represents the hourly rate in this area normally charged for similar work by attorneys of like skill. Thus, the “lodestar” figure comes to $5,025. Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496, 505 (2d Cir. 1980).
Of the total hours submitted, plaintiff's counsel spent 22.6 hours preparing this motion. Under precedent of this Circuit, those *1339 hours are not to be considered. Boe v. Colello, 447 F.Supp. 607, 610 (S.D.N.Y.1978); cf. City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1102 (2d Cir. 1977). The Court sees no reason to adjust the lodestar figure in any other way. Plaintiff's counsel represented his client quite competently,19 but the case presented no particularly difficult or novel issues. This Court recently awarded counsel fees of a similar amount in a patronage dismissal case. Layden v. Costello, No. 80-CV-300 (HGM) (N.D.N.Y., June 9, 1982) (award of $6,742.73 granted). See generally Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir. 1974) (discussing criteria in determining size of counsel fees award). Nor does any reason exist to upset plaintiff's counsel's determination of costs, amounting to $251.82. Accordingly, the five Republican councilors, defendants DeFrancisco, Ludovico, Mahoney, Tormey and Walsh, are jointly and severally liable in their personal capacities to plaintiff for attorneys' fees and costs totalling $3,581.82. Pursuant to Fed.R.Civ.P. 58 and Local Rule 25, the Clerk shall enter judgment accordingly.
In passing the Civil Rights Attorney's Fees Awards Act, Congress specifically distinguished damage awards from counsel fees, characterizing the latter as an element of costs. S.Rep.No.94-1011, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5913; Fernandes v. Limmer, 663 F.2d 619, 637 (5th Cir. 1981). Following this theory, the Act's legislative history indicates that Congress intended to allow an award of counsel fees even for defendants immune from damages. See H.R.Rep.No.94-1558, 94th Cong., 2d Sess. 9 & n.17 (1976):
(I)n some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy. 17 Consequently awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if federal civil and constitutional rights are to be adequately protected.
In Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1880), the Court gave the following “definition” of the Speech or Debate Clause: “(it applies) to things generally done in a session of the House by one of its members in relation to the business before it.” Given as a summary of several specific examples of legislative activity, none of which are as broad as the Court's conclusion, the statement should be read as dictum.
In granting state legislators absolute immunity from liability in civil rights suits in Tenney v. Brandhove, 341 U.S. 367, 379, 71 S.Ct. 783, 789, 95 L.Ed. 1019 (1951), the Supreme Court limited legislative immunity to officials who were “acting in a field where legislators traditionally have power to act.” What is limited by that broad definition is unclear. Tenney's facts involved an unquestionably traditional legislative act-an investigation by a legislative committee. Thus the facts provide no clue to the extent of the privilege.
The Tenney Court did discuss the scope of the immunity, but only in similar panoramic language: “To find that a (legislator) has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive.” Id. at 378, 71 S.Ct. at 789. The Court provided no examples of such a usurpation.
Legislative acts are said to be broad, general policy statements establishing guidelines by which the future conduct of an entire group of persons falling within a particular classification will be judged ... By contrast, executive or administrative acts in this context generally consist of the application of legislation to specific situations.
Charter of the City of Syracuse, New York-1960 (Charter), s 3-106(2). Here, even assuming arguendo that a general rule promulgated under this section setting qualifications for the City Clerk's position is to be considered legislative, cf. Three Rivers Cablevision, Inc. v. City of Pittsburgh, 502 F.Supp. 1118, 1136 (W.D.Pa.1980), a vote not to rehire plaintiff is an administrative act. Id.
Article I, s 6, of the United States Constitution provides in part that “for any Speech or Debate in either House, (the Senators and Representatives) shall not be questioned in any other Place.”
The panel quoted extensively from Supreme Court cases narrowing the types of business related acts protected by legislative immunity. For example, Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972), held the Speech or Debate Clause inapplicable to an arrangement for private publication of classified government documents. The Gravel Court emphasized that the fact that “Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature.” Id. at 624-25, 92 S.Ct. at 2627. The Court continued:
Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.
Davis had based her complaint on the equal protection component of the Fifth Amendment's due process clause. 544 F.2d at 868. The Fifth Circuit, sitting en banc, reversed the panel's decision, holding that “no right of action may be implied from the Due Process Clause of the fifth amendment.” 571 F.2d at 801. The Supreme Court reversed the en banc court's holding. Neither the Fifth Circuit sitting en banc nor the Supreme Court addressed the legislative immunity question. 442 U.S. at 235 n.11, 99 S.Ct. at 2272 n.11.
Characterizing defendants-councilors' actions as administrative rather than as legislative carries the additional advantage of cutting a fairly straightforward swath through the maze of conflicting law and rationales in this area. A converse finding plunges the Court into a quicksand of issues: whether absolute or qualified immunity should apply to legislators' deeds; if absolute immunity attaches, whether the “enforcement” exception of Supreme Court of Virginia v. Consumers Union of United States, Inc., will still provide liability against defendants in their official capacities; and whether the city should be forced to pay counsel fees if defendants are absolutely immune.
The problem stems from attempting to reconcile at least two important but conflicting social goals: compensating the victim and immunity from judicial proceedings for government officials. At least four reasons exist for official immunity:
First, imposition of personal liability upon officials duty-bound to perform the acts giving rise to the claim would deter qualified individuals from entering government service. Second, representative government requires official immunity to prevent the threat of personal liability from improperly influencing the decisions of government officials exercising their discretionary powers. Third, defending against personal liability claims would distract officials from performing their public duties. Finally, judicial review might disrupt government efforts to conduct official business.
The problem here is complicated by one additional factor. Plaintiff, the “victim,” has suffered no damages, but Congress has chosen to override the American Rule and award attorneys' fees to prevailing parties in civil rights litigation. With these considerations in mind, the Court proceeds to review the immunity issues emanating from a finding of “legislative” action.
b. The enforcement exception. As discussed in note 2 supra, Supreme Court of Virginia v. Consumers Union of United States, Inc. granted absolute immunity to state judges acting in a legislative capacity. The Court found, however, that the state court and its chief justice could be held officially liable for counsel fees in their enforcement capacities, because the court had inherent and statutory authority to initiate proceedings against attorneys for violations of the Virginia Code of Professional Responsibility. 446 U.S. at 736, 738-39, 100 S.Ct. at 1976-78. Under that theory, defendants would be liable here in their official capacities. Swearing in Falge as the new City Clerk would constitute the Council's enforcement of its earlier decision to replace plaintiff. See also Fernandes v. Limmer, 663 F.2d 619, 637 (5th Cir. 1981); Reinstein & Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv.L.Rev. 1113, 1175 (1973).
Supreme Court of Virginia contains its own analytical flaws. First, the Court never discussed the scope of the enforcement function within the legislative context. Second, liability should not flow automatically from a determination that a defendant acted in an enforcement role. The Court seemed to find “enforcement of legislation” a new immunity category, just as school and government officials may be immune. Unlike the latter two areas, however, the Supreme Court of Virginia Court failed to consider the applicability of a qualified immunity defense to a defendant acting in an enforcement capacity, or when, if ever, a court may impose personal liability on a legislative enforcement official. For a more extensive critique of the case, see Note, supra.
c. Individual absolute immunity v. municipal liability. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), denied municipalities any immunity from s 1983 suits, even though city officials might successfully assert a qualified good faith defense. The case did not present for decision, however, the more intellectually challenging question concerning the liability of local governments for acts by officials shielded by absolute immunity. While the two social goals seem to conflict most directly here, at least two Circuits have extended Owen to cases involving absolute immunity. Hernandez v. City of Lafayette, 643 F.2d 1188, 1195-97 (5th Cir. 1981); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 613 (8th Cir. 1980). See also P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 242 n.13 (Supp.1981) (“It is probable ... that the (Owen ) Court intended its holding to mean that both qualified and absolute immunities are to be deemed relevant to municipal liability under s 1983.”).
These issues and the welter of conflicting case law suggest the need for a new analytical approach for determining liability and immunity for official misconduct. Schuck, supra, at 345-67, presents one possible model; Congress and the courts should consider others as well.
While Gomez did not decide whether a defendant carries the burden of persuasion to prove both elements of the test, cf. id. at 642, 100 S.Ct. at 1924 (Rehnquist, J., concurring), this Court adopts the position of the Fourth Circuit and a leading commentator that defendants-councilors carry that burden. Logan v. Shealey, 660 F.2d 1007, 1014 (4th Cir. 1981); S. Nahmod, Civil Rights and Civil Liberties Litigation 230, 259 (1979).
(w)here the defendant is insulated from liability by a qualified executive immunity of the scope witnessed here, however, “bad faith” alone in the sense used here as illuminated by the facts found would not appear to be enough. In the absence of malice or a clear abuse of discretion, this punitive award does not lie against (the official).
(Citations omitted).
The case is distinguishable, however, both because the court limited its analysis of bad faith to the facts, and because it relied on Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), a pre-Wood case. The Scheuer Court refused to provide a “definitive exploration” of the scope of a qualified immunity defense, stating only that “(i)t is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity.” Id. at 247-48, 249,94 S.Ct. at 1692, 1693. More importantly, “Wood ‘s duty to know settled rights supplements the earlier and more general objective part of the qualified immunity test.” S. Nahmod, supra note 11, at 234 (emphasis in original). That addition brought that test and the bad faith standard of Vaughan into closer accord than had been the case under Scheuer. Harlow v. Fitzgerald, 457 U.S. 800, ——, 102 S.Ct. 2727, 2738, 72 L.Ed.2d —- (1982), reaffirms the importance of determining whether clearly established rights are involved.
Plaintiff's Exh. 3, proceedings of the Common Council for the City of Syracuse For the Fiscal Year 1981, at 4-5. The Corporation Counsel rendered his opinion on the legality of the motion to replace plaintiff under the authority of ss 5-1101(2) and 5-1101(4) of the Charter, supra note 5.
Contrary to defendants' assertions, this Court did not issue its temporary restraining order to protect councilors from liability for their actions. Except in declaratory judgment actions, this Court has no inherent power to grant constitutional absolution on abstract acts. Nor did the temporary restraining order require a vote. Defendants-councilors were free, based on the discussion at the January 2, 1982 meeting or on principles of settled law, to decide not to violate plaintiff's constitutional rights. Indeed, four defendants-councilors did vote against Falge's election. Rather, the temporary restraining order issued here, allowing a vote but enjoining a new City Clerk from being installed, served two purposes. First, it maintained the status quo. Second, it allowed a resolution of plaintiff's claim to be based on concrete facts, not speculation. An injunction against the vote would in effect have prejudged the outcome, pretermitting consideration of whether the Common Council would have voted to replace Visser in the first place, or, if so, whether valid reasons existed for the majority's decision. Cf. Farkas v. Thornburgh, 493 F.Supp. 1168, 1173-74 (E.D.Pa.1980) (dismissal for legitimate political reasons will stand, even if coupled with constitutionally flawed reasons), aff'd mem., 633 F.2d 209 (3d Cir. 1980) (table).