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DONIVAN v. DALLASTOWN BOROUGH MCKENZIE (12/01/87)

submitted: December 1, 1987.

DONIVAN, WILLIAM C. AND DONIVAN, KAY E., HIS WIFE; GOHN, BRADLEY, J. AND GOHN, KRISTINE, HIS WIFE; ADAMS, KENNETH L. AND ADAMS, SHIRLEY M., HIS WIFE; TROUT, RICHARD K. AND TROUT KENALEE, HIS WIFE
v.
DALLASTOWN BOROUGH; MCKENZIE, VERNON; FERREE, LLOYD; CHRONISTER, ROBERT; MARSHALL, RUTH; AND HENRY FRANKLIN, ALL INDIVIDUALLY AND AS ELECTED OFFICIALS, APPELLANTS



Appeal from the United States District Court for the Middle District of Pennsylvania - Scranton D.C. Civil No. 86-0277.

Author: Mansmann

MANSMANN, Circuit Judge.

This is an appeal from an order of the district court denying a motion for reconsideration of a previous order which refused to grant summary judgment on behalf of the defendants, Dallastown Borough Council and its individual members, based upon the defense of absolute legislative immunity. We will affirm the district court's order, agreeing that the abolishment of the local police force, accomplished by vote rather than by enactment of an ordinance, was not a proper exercise of council's legislative power entitling its members to immunity from suit for damages brought pursuant to 42 U.S.C. § 1983 (1982) by the plaintiffs, members of the Dallastown police force and their wives.

I.

Following heated labor negotiations between council members and police officers, on December 9, 1985, the Borough Council formally voted to abolish the Dallastown Police Department. A contract with a neighboring community was negotiated to provide police protection for the community, necessarily resulting in the employment termination of the present police officers.

The police officers commenced suit against the Borough, the former mayor, and the members of the Borough Council seeking damages based upon various state law claims and federal civil rights violations as theories for recovery. The complaint was initially filed in the Court of Common Pleas of York County, but was removed to the U.S. District Court for the Middle District of Pennsylvania. After motions to dismiss and requests for summary judgment were decided, what remained for consideration were the state law claims alleging a civil conspiracy as to the individual council members and the federal claims under § 1983 against the Borough and its members.*fn1 The Borough and the council members moved for summary judgment, asserting legislative immunity.

The district court denied the council members' motion for summary judgment, holding that the failure to pass an ordinance to effectuate the disbanding of the police force precluded characterizing their action as legislative, thus refusing them the protection of legislative immunity. A motion for reconsideration was likewise denied. This appeal followed.

II.

When a district court rejects a motion to alter or amend a judgment,*fn2 our standard of review is whether the district court abused its discretion. The district court's exercise of discretion, however, must be within the limits of the law, and if the decision denying the motion is based on legal error, our review of the matter is plenary. Adams v. Gould, Inc., 739 F.2d 858 (3d Cir. 1984).

This appeal presents a purely legal question concerning the scope of the immunity doctrine as it applied to certain legislative activity,*fn3 namely, whether legislative immunity is implicated by adherence to legislative procedures, regardless of the character of the action taken.

III.

In Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783, reh'g denied, 342 U.S. 843, 96 L. Ed. 637, 72 S. Ct. 20 (1951), the Supreme Court declared that individual legislators acting in their traditional legislative activity are absolutely immune from a suit for damages under 42 U.S.C. §§ 1983 and 1985. This grant of immunity was extended to regional legislators in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979), with the proviso that the immunity attaches to these officials only when functioning in a comparable capacity to that of members of the state legislature. Id. at 406. Our decision in Aitchison v. Raffiani, 708 F.2d 96 (3d Cir. 1983), extended absolute immunity to individuals acting in a legislative capacity at a purely local level, an issue expressly left open in Lake County.

Since not all activity by council members is "legislative," the focus of this appeal is the mode in which the Dallastown council members allegedly exercised legislative authority, i.e., whether the abolition of the police force by vote, rather than through enactment of an ordinance, represented activity within a legislative capacity allowing the immunity to attach.

Dallastown Borough, situated in Pennsylvania, operates under the Pennsylvania Borough Code, which described a borough's ...


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