FILED

United States Court of Appeals

Tenth Circuit

April 24, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD SABLE II,

Plaintiff - Appellee,

v. No. 07-6286

STEWART E. MYERS, JR.,

individually; R GREGG RAWLS,

individually; JOHN A. LIPPERT;

KATHY WALBERT WALKER,

individually,

Defendants - Appellants,

and

CITY OF NICHOLS HILLS, a

municipal corporation, 

 Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. NO. 5:03-cv-00643-W)

Robert S. Lafferrandre (Andrea D.W. Moates, with him on the brief), of Pierce,

Couch Hendrickson, Baysinger & Green, L.L.P., Oklahoma City, Oklahoma, for

Defendants - Appellants.

Rand C. Eddy (Sherri Carver, with him on the brief), of Eddy Law Firm, P.C.,

Oklahoma City, Oklahoma, for Plaintiff - Appellee.

Before LUCERO, EBEL, and HARTZ, Circuit Judges.
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HARTZ, Circuit Judge.

Donald E. Sable II alleges that the City Council of the City of Nichols

Hills, Oklahoma, sought to condemn his property in retaliation for his having

brought a successful quiet-title suit against the City. He sued the City and several

councilors under 42 U.S.C. § 1983. The councilors argued that legislative

immunity protected them from suit. The district court disagreed and the

councilors (Defendants) appeal. We have jurisdiction under 28 U.S.C. § 1291,

see Mitchell v. Forsyth, 472 U.S. 511, 525 (1985) (denial of absolute immunity is

immediately appealable), and reverse.

I. BACKGROUND

A. Quiet-Title and Condemnation Proceedings

In 1995 Mr. Sable purchased a parcel of property immediately north of a

City public-works facility. The parcel occupied about two city blocks. Fenced in

with the parcel on its southern border was a 33-foot-by-290-foot strip (the Strip)

that had been the south half of a City street that ran east to west. The street was

vacated in 1976, and apparently title to the vacated land was split down the

middle, with ownership of each half going to the adjoining property owner, so

that the Strip reverted to the City. According to Mr. Sable, however, his

predecessors in title had taken possession of the Strip and kept it continually
1

Felton is not a party in this case. A district-court pleading asserts that he

is deceased.

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fenced in since 1972, giving him ownership of the Strip through adverse

possession. 

In 1997 the City informed Mr. Sable that it wanted to use the Strip to

expand its public-works facility. The City planned to move the fence from the

north border of the facility to the north border of the Strip and insisted that

Mr. Sable remove his possessions from the Strip. When Mr. Sable and the City

were unable to reach an agreement, the three-member City Council unanimously

voted to move the fence as planned. Two of the Defendants, then-Mayor Stewart

E. Meyers Jr and Councilor R. Gregg Rawls, were on the Council at the time.

Soon thereafter Mr. Sable filed suit against the City and the members of the

Council (Meyers, Rawls, and Vice Mayor Dr. Warren L. Felton1

) in Oklahoma

state court to quiet title to the Strip. After the court granted the City summary

judgment, the Oklahoma Court of Civil Appeals reversed and remanded for

rehearing, and the state supreme court denied certiorari in January 2000. Back in

state district court Mr. Sable sought leave to amend his quiet-title petition to

allege a conspiracy by the defendants and seek damages and ejectment. The court

granted leave on March 30, 2001.

A few weeks after the state court granted Mr. Sable’s motion to amend, the

City Council began the process of condemning his entire parcel of land (not just
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the Strip). On April 24, 2001, it held a special meeting at which it approved a

resolution “declaring the necessity for acquiring and owning certain real property

. . . , a portion of which is also known as 7701 North Classen Boulevard

[Mr. Sable’s parcel], and authorizing the acquisition of the property by exercise

of the power of eminent domain.” Aplt. App. Vol. I at 245. Once again, Meyers

and Rawls voted in favor. Before the vote the Council discussed its power to

acquire Mr. Sable’s property even if he did not want to sell it:

VICE-MAYOR FELTON: But in any case, could we acquire

[Mr. Sable’s land], though? I mean, if [Mr. Sable] didn’t want to sell

it?

JOHN WILLIAMS[a private attorney apparently retained by the

City]: Yes, we can.

VICE-MAYOR FELTON: Just because of where it’s sitting, and

why we want it?

CITY ATTORNEY MOLER: That’s right. If it’s for a public

purpose—

Id. Vol. III at 872. At that point, as we understand the transcript of the meeting,

various conversations began simultaneously. But one exchange (on which

Mr. Sable relies to show Defendants’ improper motive) was recorded:

COUNCILMAN RAWLS: . . . There’s none.

VICE-MAYOR FELTON: It’s good to be King.

Id. 
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At a meeting on June 25 the City Council passed another resolution

authorizing the City’s use of eminent-domain power to acquire Mr. Sable’s entire

property, this time also authorizing negotiations with Mr. Sable to determine what

he would be paid. Mr. Sable rejected the City’s June 26 offer of $378,995, a

figure based on an appraisal obtained by the City. In July 2001 the City filed a

condemnation action in state court, alleging that Mr. Sable’s property was needed

to facilitate the City’s expansion of its public-works facility. 

While the condemnation action was pending, the state court hearing

Mr. Sable’s quiet-title action granted partial summary judgment in favor of

Mr. Sable, determining that he had ownership of the Strip through adverse

possession. The issue of damages was deferred. 

Negotiations between Mr. Sable and the City continued without success. In

December 2002 the City Council—which now included Meyers, Rawls, and

Defendant Councilor John A. Lippert—voted again “to offer to purchase

Mr. Sable’s property at fair market value.” Id. Vol. I at 262. But, again, no

agreement was reached.

On April 23, 2003, Mr. Sable filed in state court the suit before us. In

September 2003, after a two-year hiatus in the condemnation suit, the City filed in

that suit a motion to begin the process of appraising Mr. Sable’s property. 

Angered, Mr. Sable wrote a letter to Lippert and Defendant Kathy Walbert

Walker, a new City Council member, demanding that they “submit a motion to the
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Council . . . to withdraw the condemnation action and to have the case dismissed

with prejudice.” Id. Vol. II at 420. He threatened that if they did not comply, he

would “instruct [his] attorneys to immediately . . . add your . . . names to the list

of Defendants” in the civil-rights suit filed in April 2003. Id.

The condemnation action proceeded anyway. Eventually, the trial court,

affirmed by the Oklahoma Court of Civil Appeals, upheld the condemnation as

having a public purpose—namely, to meet the City’s ongoing water-treatment

needs. The Oklahoma Supreme Court denied Mr. Sable’s petition for certiorari.

B. Federal-Court Proceedings

The suit before us was originally filed in state court, but was removed to

the United States District Court for the Western District of Oklahoma on May 13,

2003. Councilors Lippert and Walker were added as Defendants in April 2004. 

Mr. Sable’s complaint contained the following claims: (1) a damages claim

under 42 U.S.C. § 1983 alleging that the condemnation action was retaliation in

violation of his First Amendment right to petition the government for redress, his

due-process rights, his equal-protection rights, and his right of access to the

courts under the Privileges and Immunities Clause; (2) a § 1983 damages claim

alleging a conspiracy to retaliate against him for exercising his constitutional

rights; (3) a state-law abuse-of-process claim; and (4) a state-law claim for

intentional interference with prospective economic advantage.
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The district court granted Defendants’ motion to dismiss Mr. Sable’s

conspiracy claim and the access-to-courts component of his § 1983 claim. 

Defendants also filed summary-judgment motions. With respect to Mr. Sable’s

remaining § 1983 claims, Defendants raised, among other defenses, absolute

legislative immunity. The district court rejected all the defenses, and Defendants

appeal.

II. DISCUSSION

“Absolute legislative immunity attaches to all actions taken in the sphere of

legitimate legislative activity.” Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998)

(internal quotation marks omitted). Immunity is not limited to members of

Congress and state legislators, but extends to local-government legislators. See

id. at 49; see also Supreme Court of Va. v. Consumers Union of U.S., Inc., 446

U.S. 719, 734 (1980) (recognizing immunity for state judges acting in legislative

capacity). It applies, however, only to legislators sued in their individual

capacities, not to the legislative body itself. See Minton v. St. Bernard Parish

Sch. Bd., 803 F.2d 129, 133 (5th Cir. 1986) (“[A]bsolute legislative immunity [is

a] doctrine[] that protect[s] individuals acting within the bounds of their official

duties, not the governing bodies on which they serve.”). 

Legislative immunity enables officials to serve the public without fear of

personal liability. Not only may the risk of liability deter an official from proper

action, but the litigation itself “creates a distraction and forces legislators to
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divert their time, energy, and attention from their legislative tasks to defend the

litigation.” Supreme Court of Va., 446 U.S. at 733 (brackets and internal

quotation marks omitted). “Legislators are immune from deterrents to the

uninhibited discharge of their legislative duty, not for their private indulgence but

for the public good. One must not expect uncommon courage even in legislators.” 

Tenney v. Brandhove, 341 U.S. 367, 377 (1951). Given this purpose, whether

there is immunity must “turn[] on the nature of the act, rather than on the motive

or intent of the official performing it.” Bogan, 523 U.S. at 54. As explained in

Tenney, “The privilege would be of little value if [legislators] could be subjected

to the cost and inconvenience and distractions of a trial upon a conclusion of the

pleader, or to the hazard of a judgment against them based upon a jury’s

speculation as to motives.” 341 U.S. at 377. 

The Supreme Court has recognized legislative immunity for acts beyond

just voting on legislation. Tenney concerned a challenge to a legislativecommittee hearing investigating Communist activities. The California Senate

Fact-Finding Committee on Un-American Activities subpoenaed William

Brandhove to question him about a petition he had circulated. The petition

accused the committee of conspiring with others to use him to smear a candidate

for Mayor of San Francisco as a “Red.” See id. at 369–70 (internal quotation

marks omitted). The committee conducted a hearing at which some evidence

contradicting Brandhove was admitted, but Brandhove refused to testify, resulting
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in his criminal prosecution for contempt. See id. at 370–71. The charge was

dropped, however, after a jury failed to agree on a verdict. See id. at 371. 

Brandhove then sued members of the committee for damages under § 1983,

alleging that the hearing to which he was subpoenaed “‘was not held for a

legislative purpose,’” but to silence him, in violation of the United States

Constitution. Id. The Supreme Court held that the legislators had been “acting in

the sphere of legitimate legislative activity.” Id. at 376; see id. at 379. 

Committee investigations, it said, “are an established part of representative

government,” id. at 377, and the committee had been “acting in a field where

legislators traditionally have the power to act,” id. at 379. The Court cautioned

that judges should not lightly conclude that a legislative body has exceeded

legislative power: “To find that a committee’s investigation 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. 

The Court took a similarly expansive view in Bogan, 523 U.S. at 44. The

Court considered a city council’s vote to adopt an ordinance eliminating a

government office in which only one person, Scott-Harris, was an employee. See

id. at 46–47. Scott-Harris filed a § 1983 claim against the city, the mayor (who

had proposed and signed the ordinance), a city councilor, and others, alleging that

the elimination of her position was retaliation for her complaining about racial

slurs uttered by another government employee, who was politically connected to
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members of the city council. See id. at 47. The Court held that the mayor and

city councilor were protected by legislative immunity. It observed that the

councilor’s “acts of voting for an ordinance were, in form, quintessentially

legislative,” and that the mayor’s “introduction of a budget and signing into law

an ordinance also were formally legislative, even though he was an executive

official[,] . . . because they were integral steps in the legislative process.” Id. at

55 (citation omitted). As for substance, “the ordinance . . . bore all the hallmarks

of traditional legislation.” Id. The council had “governed in a field where

legislators traditionally have power to act.” Id. at 56 (internal quotation marks

omitted). And the ordinance “reflected a discretionary, policymaking decision

implicating the budgetary priorities of the city and the services the city provides

to its constituents.” Id. at 55–56. The Court explained that eliminating a

position, “unlike the hiring or firing of a particular employee, may have

prospective implications that reach well beyond the particular occupant of the

office.” Id. at 56. 

This circuit has followed the Supreme Court’s broad view of legislative

immunity. In Fry v. Board of County Commissioners of County of Baca, 7 F.3d

936 (10th Cir. 1993), we granted immunity to board members of a county

commission with respect to a decision to vacate roadways. The Frys wanted to

establish a road along section lines to link two different tracts of their land. See

id. at 938. When the board denied the request, they brought suit in state court,
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claiming that a 1911 commission resolution had already designated all section

lines as county roads. See id. at 938–39. The state court agreed and ordered the

removal of all fences that interfered with travel on the road desired by the Frys. 

See id. at 939–40. Allegedly prodded by landowners who were angry at the Frys,

the board approved a resolution vacating about 3 1/2 miles of section-line roads in

the county, including the route of the Frys’ road. The Frys then sued the county

commissioners under § 1983, alleging that the board’s action was in violation of

various constitutional rights. See id. at 937. Following Tenney, we held that the

board members enjoyed legislative immunity. We noted that state law authorized

the commission to vacate the road and that procedural formalities were followed. 

See id. at 942. 

We recognize that this court refused to grant legislative immunity in

Kamplain v. Curry County Board of Commissioners, 159 F.3d 1248 (10th Cir.

1998). But the context was quite different. At a public hearing of the county

board of commissioners, Kamplain protested the board’s decision to award a bid

to a competitor of his employer. See id. at 1250. He was removed from the

meeting and the board later decided to ban him from speaking at all future

meetings. See id. Kamplain sued, alleging that the decision to ban him violated

his First Amendment right to free speech. See id. We denied legislative

immunity, observing that “[n]ot all actions taken at a legislative meeting by a

local legislator are legislative for the purposes of immunity.” Id. at 1251. The
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decision to ban Kamplain from future meetings was not legislative “[b]ecause the

circumstances of this case did not concern the enactment or promulgation of

public policy,” and thus were not “related to any legislation or legislative

function.” Id. at 1252. We wrote:

The Board’s decisions to ban [Kamplain] were simply efforts to

monitor and discipline his presence and conduct at future

Commission meetings. In voting to censure [Kamplain] and prevent

him from disrupting future public meetings, the Board members were

not voting on, speaking on, or investigating a legislative issue. Even

though the Board may have acted during a “regularly scheduled

meeting,” we hold that the Board did not commit these acts in a

legislative capacity; the acts were of an administrative nature.

Id. (footnote and citation omitted). We also rejected the defendants’ alternative

argument that the ban of Kamplain was legislative because “the Board acted in

relation to the business of awarding bids . . . .” Id. We distinguished bid

approval from legislative actions, noting that in the case of the former, “the Board

applies known rules and legislation to make an administrative business decision.” 

Id.

The case before us is unlike Kamplain and very similar to Fry. The

decision to expand the public-works facility was neither an administrative matter

(such as the conduct of a meeting) nor an essentially ministerial task (as when

applying the law and predetermined criteria to select a bid). Oklahoma law

authorizes municipalities to exercise the power of eminent domain to obtain land

for public works. See Okla. Stat. tit. 11, § 22-104(3) (2008) (“Every municipality
2

Mr. Sable also appears to be seeking relief against at least some of the

Defendants for their failure to act—for not halting the condemnation proceedings. 

Such failure to act, however, must also be protected by legislative immunity. It

would be strange public policy indeed to inform legislators that they are immune

from liability if they decide to take action but not immune if they decide that

action would be contrary to the public interest.

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shall have the right to . . . [e]xercise the right of eminent domain for any

municipal purpose . . . .”); id. § 22-104(2) (“any municipal purpose” includes

“public utility and public park purposes”). The City’s decision to take

Mr. Sable’s land was undoubtedly an exercise of discretion regarding a matter of

public policy that would impact the functioning of public services for years to

come. See Bogan, 523 U.S. at 55–56 (decision to eliminate one-person agency

was “discretionary, policymaking decision implicating the . . . priorities of the

city and the services the city provides to its constituents”). That the councilors

may have exercised that discretion on the basis of motives that were irrelevant to

public purposes does not affect the councilors’ legislative immunity. See id. at

54. The effect of the decision on future government operations was likely greater

than the vacation of undeveloped roads in Fry and certainly more significant than

the elimination of a one-person office in Bogan. Nor is there any question about

the formalities of legislative action: the decisions to proceed with condemnation

were the products of formal votes.2

 We would have to adopt a very restrictive

view of what is “legitimate legislative activity,” id. at 54 (internal quotation

marks omitted), to deny immunity to Defendants. In keeping with governing
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precedent, we refuse to do so. See Nat’l Ass’n of Soc. Workers v. Harwood, 69

F.3d 622, 634 (1st Cir. 1995) (observing that legislative-immunity doctrine has a

“broad sweep”).

Mr. Sable, quite naturally, focuses on the particularity of the City Council

action in this case. The condemnation was directed specifically at him. There

was, as he sees it, no general policy involved in this land grab, just one discrete,

and despicable, act. Adoption of this perspective, however, would virtually

eliminate legislative immunity in the § 1983 context. Almost every plaintiff will

perceive the challenged conduct as a particular act directed at violating the

plaintiff’s rights. Brandhove viewed the California legislative committee’s

hearing not as a pursuit of public policy but as an attempt to silence him. See

Tenney, 341 U.S. at 371. Scott-Harris viewed the elimination of her one-person

office as retaliation for her complaints against racism. See Bogan, 523 U.S. at 47. 

And the Frys viewed the vacation of county roadways as retaliation for their

exercise of First Amendment rights. See Fry, 7 F.3d at 937. The decisions in

these cases teach us that we must consider such claims from a broader perspective

than the specific complaint of the plaintiff. In general, legislative investigations,

the elimination of public agencies, and the vacation of roadways are matters of

public interest and legitimate legislative concern. Legislators should be able to

make decisions in these areas without fear of lawsuits against them personally. 

So, too, for decisions to construct or expand public works. 
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We appreciate the discomfort that may arise from the recognition of

legislative immunity in this case. Mr. Sable’s allegations (whose truth has not

been adjudicated) create an ugly picture of the abuse of public power to achieve

improper ends. Perhaps such pettiness is more likely to arise in municipal

legislative bodies than in legislatures with more members and broader

jurisdiction. It is also true, however, that charges of improper motive are likely

easier to bring at the local-government level. And the honor and fortune that

come from service in local government are slight enough that many capable

candidates for municipal office would surely forgo the rewards of such service if

faced with the possibility of being sued for every decision taken without public

consensus. See Bogan, 523 U.S. at 52 (“[T]he time and energy required to defend

against a lawsuit are of particular concern at the local level, where the part-time

citizen-legislator remains commonplace.”). Moreover, those mistreated by

municipal legislators are not without remedy. Not only are political remedies

available, but a municipality, as opposed to its officials, is subject to suit under

§ 1983. See id. at 53. History has shown that the greater good comes from

protecting legislators from suit based on their legislative acts. This conclusion

may be little solace to one who perceives himself to be the victim of abuse of

power. But perhaps it emphasizes each citizen’s duty, for the public interest as

well as one’s own, to seek the election of honest, capable leaders, or even run for

office oneself.
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III. CONCLUSION

We REVERSE the district court’s denial of summary judgment to the

appellant Defendants with respect to the claims under 42 U.S.C. § 1983 against

them in their individual capacities, and we REMAND for dismissal of those

claims.