## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 27 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

GARY KAMPLAIN, Plaintiff - Appellee,

v. No. 97-2144 CURRY COUNTY BOARD OF COMMISSIONERS; FRANK H. BLACKBURN; PAUL D. BARNES; DARREL BOSTWICK; JOHNNY CHAVEZ; and JOEL DAVID SNIDER, Defendants - Appellants, and MIKE JACKSON, Sheriff, and MATT MURRAY, Chief Deputy, Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-96-1298-M)
Emily A. Franke (James P. Lyle with her on the brie fs) of Butt, Thornton & Baehr, P.C., Albuquerque, New Mexico, for Defendant s-Appellants. Kenneth C. Downes of Kenneth C. Downes & Associates , P.C., Albuquerque, New Mexico, and Stephen G. French, Albuquerque, NewMexico (Christopher L.-2-

Harlos of Kenneth C. Downes & Associates, P.C., Alb uquerque, New Mexico, with them on the brief), for Plaintiff-Appellee.

_________________________ Before PORFILIO, McKAY, and BRORBY , Circuit Judges.

McKAY, Circuit Judge.
This civil rights action arose from the actions tak en by the Curry County Board of Commissioners in August 1996. Plaintiff M r. Gary Kamplain attended a Curry County Commission public hearing on August 6, 1996, at which he represented his employer, Tom Growney Equipment, In c., in the awarding of bids. Plaintiff was removed from the public hearing afterhe protested the Board’s award of a bid to a competitor of his employer. Atthe regularly scheduled Board meeting on August 20, 1996, the Board voted to ban Plaintiff from all future Commission meetings. The Board notified Plaintiff and his employer of its action by letter. After receiving a letter of complaint f rom Plaintiff’s attorney, the Curry County Attorney sent a letter dated August 27, 1996 , to Plaintiff’s attorney informing Plaintiff that, while he could attend Com mission meetings, he would not be permitted to speak before or participate in discussions with the Board. Plaintiff filed this 42 U.S.C. § 1983 action for in junctive relief and damages in which he alleged that his First Amendment right to free speech was1 Plaintiff also alleged violations of the New Mexico Tort Claims Act and

the New Mexico Open Meeting Act, pendent state clai ms which we do not address here.

2 The individual members of the Board are Frank H. Bl ackburn, Paul D. Barnes, Darrel Bostwick, Johnny Chavez, and Joel David Snider. Although the sheriff and the deputy sheriff who removed Plaintif f from the meeting were also sued, they do not appeal the immunity issue before us. -3- violated. 1 Defendants, the Board and individual members of t he Board, 2 filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss on grounds of absolute legislative immunity. Defendants appeal t he district court’s denial of their motion to dismiss. In addition, the districtcourt retained jurisdiction pending this appeal after certifying that the appea l was frivolous. See United States v. Hines , 689 F.2d 934, 936-37 (10th Cir. 1983). Citing th e district court’s certification of Defendants’ appeal as frivolous, P laintiff moves this court for damages and costs pursuant to Federal Rule of Appel late Procedure 38. We have jurisdiction to address whether Plaintiff’s claims are barred by absolute legislative immunity because the district court’s denial of immunity “turns on an issue of law,” and, therefore, it “is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291.” Mitchell v. Forsyth , 472 U.S. 511, 530 (1985). We review de novo the decision of the district court denying a motio n to dismiss based on absolute immunity. See id. ; Gagan v. Norton , 35 F.3d 1473, 1475 (10th Cir. 1994), cert. deniedsub nom. Ritz v. Gagan , 513 U.S. 1183 (1995). Because the district court denied a Rule 1 2(b)(6) motion to dismiss, we-4-

confine our review to the allegations set forth in the complaint, accept all wellpleaded allegations in the complaint as true, and d raw all reasonable inferences in Plaintiff’s favor. See Gagan , 35 F.3d at 1475. The concept of legislative immunity is well establi shed in this circuit, see,
e.g. , Fry v. Board of County Comm’rs , 7 F.3d 936, 942 (10th Cir. 1993), and the Supreme Court recently confirmed that, like their f ederal, state, and regional counterparts, “[l]ocal legislators are entitled to absolute immunity from § 1983 liability for their legislative activities.” Bogan v. Scott-Harris , U.S. , 118 S. Ct. 966, 972 (1998); see also U.S. Const. art. 1, § 6 (Speech or Debate Clause); Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency , 440 U.S. 391, 404- 05 (1979) (extending immunity rule to regional legi slators); Tenney v. Brandhove , 341 U.S. 367, 378-79 (1951) (holding that state leg islators were absolutely privileged in their legislative acts). The Supreme Court, however, “has been careful not to extend the scope of [legislative imm unity] protection further than its purposes require,” Forrester v. White , 484 U.S. 219, 224 (1988), and the government official seeking immunity bears the burd en of showing that an exemption from personal liability is justified. Se e id. Legislative immunity thus extends to legislators only when they are acting “i n the sphere of legitimate legislative activity.” Tenney , 341 U.S. at 376. In order to determine whether Defendants should be cloaked in legislative-5-

immunity, we look to the function that the Board me mbers were performing when the actions at issue took place, see Forrester , 484 U.S. at 224, and we examine the nature of those actions. See Bogan , 118 S. Ct. at 973 (“Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.”); see also Cinevision Corp. v. City of Burbank , 745 F.2d 560, 579 (9th Cir. 1984) (“The critical concern in our inquiry [is] the nature of the action on which the vote was taken.”), cert. de nied , 471 U.S. 1054 (1985). “‘The essentials of the legislative function are th e determination of the legislative policy and its formulation and promulgation as a de fined and binding rule of conduct.’” Cinevision , 745 F.2d at 580 (quoting Yakus v. United States , 321 U.S. 414, 424 (1944) (holding that Emergency Price Contr ol Act of 1942 did not unconstitutionally delegate the legislative power o f Congress)); see also Prentis v. Atlantic Coast Line Co. , 211 U.S. 210, 226 (1908) (“Legislation . . . look s 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.”). Further, legislative actions must be done “‘in relation to the business before’” the legislative body. Powell v. McCormack , 395 U.S. 486, 502 (1969) (quoting Kilbourn v. Tho mpson , 103 U.S. 168, 204 (1881)); see also Fry , 7 F.3d at 942 (upholding district court finding that “‘the legislative process was at work’ ” in the challenged action). Thus, the Supreme Court has instructed us, in admittedly differing contexts, that,-6-

at its core, the legislative function involves dete rmining, formulating, and making policy. We are not persuaded by the approach taken by some of our sister circuits in determining legislative capacity or function. T hese courts rest their analysis on the number of persons affected by a legislative body’s decision. See Ryan v. Burlington County, N.J. , 889 F.2d 1286, 1291 (3d Cir. 1989) ( “Where the decision affects a small number or a single individ ual, the legislative power is not implicated, and the act takes on the nature of admi nistration.”); Haskell v. Washington Township , 864 F.2d 1266, 1278 (6th Cir. 1988) (noting, in t he context of a zoning action, that if “‘the action si ngle[s] out specifiable individuals and affect[s] them differently from others, it is a dministrative’” (citations omitted)). But see Acierno v. Cloutier , 40 F.3d 597, 610 (3d Cir. 1994) (stating that numbers inquiry in Ryanis not conclusive test for determining what is legislative or administrative). Other courts have limited immunity to functions involving legislative speech and debate, voting, pr eparing committee reports, conducting committee hearings, and other “integral steps in the legislative process.” Bogan , 118 S. Ct. at 973; see, e.g. , Hansen v. Bennett , 948 F.2d 397, 402 (7th Cir. 1991), cert. denied , 504 U.S. 910 (1992). Not all actions taken at a legislative meeting by alocal legislator are legislative for purposes of immunity. See Roberson v. Mullins , 29 F.3d 132, 134-7-

(4th Cir. 1994); accordBrown v. Griesenauer , 970 F.2d 431, 437 (8th Cir. 1992) (holding that impeachment proceedings are essential ly judicial or adjudicatory in nature despite legislative decision-making body andform of proceedings);
Hansen , 948 F.2d at 402-03 (holding that mayor was not ac ting in a legislative capacity when he restored order and regulated discu ssions at a public meeting); Cinevision , 745 F.2d at 580 (holding that city councilperson’ s vote to disapprove plaintiff’s proposed concerts at city amphitheater was an executive, not a legislative act); Detz v. Hoover , 539 F. Supp. 532, 534 (E.D. Pa. 1982) (holding that a municipality’s employment decisions are “ess entially administrative in nature” (emphasis omitted)). Nor does voting on anissue, in and of itself, determine that the act is legislative in nature. S ee Smith v. Lomax , 45 F.3d 402, 406 (11th Cir. 1995); Roberson , 29 F.3d at 134 n.3; Cinevision , 745 F.2d at 580. “Whether actions . . . are, in law and fact, an exe rcise of legislative power depends not on their form but upon ‘whether they co ntain matter which is properly to be regarded as legislative in its chara cter and effect.’” INS v. Chada , 462 U.S. 919, 952 (1983) (citation omitted); accord Roberson , 29 F.3d at 135; Chicago Miracle Temple Church, Inc. v. Fox , 901 F. Supp. 1333, 1343-44 (N.D. Ill. 1995). At issue here is not the Board’s ejection of Plaint iff from the public meeting but its vote to ban Plaintiff from all futu re Commission meetings and its3 It is unclear from the record whether the Board’s d ecision to allow

Plaintiff to attend the Commission meetings while p rohibiting his participation or speech at those meetings was the result of a separate Board meeting and vote. The record also does not indicate whether the Board conducted any legislative business at the meeting in which it decided to ban Plaintiff’s attendance. Even if the meeting or meetings were partially legislative in nature, that fact alone does not determine whether the decisions to ban Plaintif f from attending, participating, and speaking at Commission meetings were legislativ e in nature. See Forrester , 484 U.S. at 223-24; see also Hansen , 948 F.2d at 402 n.12, 404 (relying on fact that city council meeting included mixture of legis lative, executive, and administrative functions to determine that mayor wa s not entitled to legislative immunity).

4 We point out that our inquiry into the nature of th e acts at issue in this case, and the function of the Board members in comm itting those acts, does not conflict with the long-held principle that a legisl ator’s or legislature’s motive is not a proper consideration for legislative immunity . See United States v. (continued...) -8- subsequent decision to prohibit Plaintiff from part icipating in or speaking before the Board at Curry County Commission meetings. 3 After considering the function and character of the Board’s actions, we conclude t hat its ban of Plaintiff from attending Commission meetings and its subsequent de cision to prohibit Plaintiff from speaking at or participating in meetings were administrative acts. Because the circumstances of this case did not concern the enactment or promulgation of public policy, we cannot say that the bans were rel ated to any legislation or legislative function. The Board’s decisions to ban Plaintiff were simply efforts to monitor and discipline his presence and conduct at future Commission meetings. In voting to censure Plaintiff and prevent him from disrupting future public meetings, 4 the Board members were not voting on, speaking on, or investigating a4 (...continued)

Brewster , 408 U.S. 501, 526 (1972); Tenney , 341 U.S. at 378; accordFry , 7 F.3d at 942. Moreover, we do not express an opinion on whether the Board’s actions to prevent or curtail Plaintiff’s actions or speech during a public Commission meeting are constitutionally valid.

5 We doubt that the Board’s actions were more than in cidentally related to legislative business, see Hansen , 948 F.2d at 403, and we emphasize that legislative immunity “does not prohibit inquiry int o activities that are casually or incidentally related to legislative affairs but nota part of the legislative process itself.” Brewster , 408 U.S. at 528. -9- legislative issue. See Hansen , 948 F.2d at 403. Even though the Board may have acted during a “regularly scheduled meeting,” we ho ld that the Board did not commit these acts in a legislative capacity; the ac ts were of an administrative

nature. Further, even if we accept Defendants’ claim that t he Board acted in relation to the business of awarding bids, 5 we believe that the function of awarding of bids is essentially an administrative o r executive function. Awarding bids and purchasing county property are actions whe reby the Board applies known rules and legislation to make an administrative bus iness decision. Accord Cinevision , 745 F.2d at 580 (holding that city councilperson’ s voting on proposed concerts constituted administration of its contractwith Cinevision); Fox , 901 F. Supp. at 1343-44 (holding that village board vote t o authorize purchase offer for property was not legislative act because it was notan enactment or promulgation of public policy); Lacorte v. Hudacs , 884 F. Supp. 64, 70-71 (N.D.N.Y. 1995)6 We also deny Plaintiff’s motion for costs and damag es pursuant to Federal

Rule of Appellate Procedure 38. An appeal is not f rivolous where the issue of absolute legislative immunity, together with the pa rticular facts and context of the case, has not been previously analyzed by this court. Defendants have not appealed the district court’s frivolousness certifi cation and retention of jurisdiction. -10- (concluding that adoption of resolution denying contract to alleged low-bidders was more properly characterized as an administrativ e act); Three Rivers Cablevision, Inc. v. City of Pittsburgh , 502 F. Supp. 1118, 1136 (W.D. Pa. 1980) (holding that city council vote to award competitiv ely bid contract “was clearly an administrative act”); cf. Rateree v. Rocket , 852 F.2d 946, 951 (7th Cir. 1988) (holding that vote on city budget constituted act i n commissioners’ legislative capacity). Thus, because Defendants were acting in an administ rative capacity when they banned Plaintiff’s attendance, participation, and speech at Commission meetings, they are not entitled to absolute legislative immunity. “[W]e cannot see how [Defendants’] independence as . . . legislator[ s]–[their] ability to vote and speak freely on legislative matters–is implicated” by the decision to ban an individual from participating and speaking in a Cur ry County Commission public meeting. Hansen , 948 F.2d at 404. For these reasons, we affirm th e district court’s denial of the motion to dismiss. 6
AFFIRMED.