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RABKIN v. DEAN

June 22, 1994

ANNA RABKIN, Plaintiff,
v.
SHIRLEY DEAN, FRED COLLIGNON, MARY WAINRIGHT, BETTY OLDS, CARLA WOODWORTH, and CITY OF BERKELEY, Defendants.


WILKEN


The opinion of the court was delivered by: CLAUDIA WILKEN

Plaintiff Anna Rabkin, the Berkeley City Auditor, brings this action against Defendants, the City of Berkeley and some of the Berkeley City Councilmembers, alleging that they denied her salary increases for Political reasons. Defendants bring the present motion to dismiss, Pursuant to Federal Rule of Civil Procedure 12(b)(6), on grounds that the individual Defendants are entitled to absolute immunity and that none of Plaintiff's eight causes of action state a claim.

 Defendants' motion to dismiss came on regularly for hearing before this Court on May 13, 1994. Jylana Collins, Deputy City Attorney, appeared for Defendants, and Malcolm Burnstein and Catherine Trimbur appeared for Plaintiff. The Court, having considered all the papers submitted and oral arguments of counsel, and good cause appearing, hereby GRANTS IN PART AND DENIES IN PART Defendants' motion, as follows.

 A motion to dismiss for failure to state a claim will be denied unless it appears that the plaintiff can prove no set of facts which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064, 93 L. Ed. 2d 998, 107 S. Ct. 949 (1987). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The motion is properly granted where there is either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).

 Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987), cert. denied, 484 U.S. 944 (1987). The Court may take judicial notice of city charters, city ordinances and resolutions, and the contents and legislative history of a proposed city ordinance or resolution. Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir.), cert. denied, 434 U.S. 968, 54 L. Ed. 2d 455, 98 S. Ct. 513 (1977).

 FACTUAL SUMMARY

 Plaintiff is the Berkeley City Auditor. Under the Berkeley City Charter and ordinances, the City Auditor holds a full time department head position that is filled by election. Under the Charter, the city council fixes the auditor's salary.

 On December 15, 1992, the city council failed to approve a proposed equity increase for the auditor, although it had recently approved a merit compensation plan for city employees. On July 20, 1993, the city council again failed to approve a proposed cost of living increase for the auditor, although it had recently approved cost of living increases for all city employees. The individually named Defendants either voted against the proposed auditor salary increases or abstained. Plaintiff alleges that the newly-elected majority of the city council has singled her out for adverse salary decisions to punish her for her political associations and activities, and to drive her out of office.

 DISCUSSION

 I. LEGISLATIVE IMMUNITY

 Local legislators are entitled to absolute immunity for acts undertaken in their legislative capacity. Cinevision Corp. v. City of Burbank, 745 F.2d 560, 577-80 (9th Cir. 1984), cert. denied, 471 U.S. 1054, 85 L. Ed. 2d 480, 105 S. Ct. 2115 (1985). They are entitled to less protection for acts taken in their executive or administrative capacity. Id. at 577-78 & n.3. Thus, the Court must determine as a matter of law whether Defendants' votes at issue were legislative or administrative acts. Where, as here, the act complained of is a vote to take or not take certain action, the critical inquiry is the nature of the action on which the vote was taken and whether that action was legislative in character and effect. Id. at 577-80.

 Defendants argue that their salary actions were taken within their legislative capacity as city councilmembers to fix the auditor's salary and to make budget decisions, pursuant to their charter authority and responsibilities. As such, they say, these are the kinds of acts which courts have found to be "quintessential" legislative acts. Defendants cite several decisions from other circuits in support of this position. In Dusanenko v. Maloney, 560 F. Supp. 822 (S.D.N.Y. 1983), aff'd, 726 F.2d 822 (2d Cir. 1984), which involved facts most similar to the case at bar, the elected town supervisor, his confidential secretary and the former deputy town attorney brought Section 1983 claims against members of the town board and the town itself. After an election which put the plaintiffs in the political minority, the town board cut the salaries of the supervisor and the secretary nearly in half, and declined to reappoint the former deputy town attorney. The board's authority to fix salaries of all employees was provided in Town Law. The court held that the board members were entitled to legislative immunity because the actions complained of were well within the scope of their authority as outlined in Town Law, and were tasks similar to those that are carried out by the New York legislature. Id. at 827.

 Other decisions cited by Defendants similarly held that legislative votes to eliminate individual positions were legislative acts entitling the legislators to absolute immunity, even where, as is alleged here, they were directed at specific individuals for political reasons. *fn1"

 Plaintiff relies on cases within this circuit, but which do not involve similar facts. *fn2" Plaintiff's central argument is that these cases illustrate acts taken, by vote of the legislative officials, against single individuals rather than the public at large, and therefore characterized as administrative. However, whether the act affects only one individual is not the determinative factor in the Ninth Circuit decisions. See Cinevision, 745 F.2d at 579. Rather, under both Ninth Circuit and Supreme Court decisions, the inquiry involves the nature of the action and the capacity in which the legislators were acting. See, e.g., Cinevision, 745 F.2d at 579; Forrester v. White, 484 U.S. 219, 223, 98 L. Ed. 2d 555, 108 S. Ct. 538 (1988). In all cases cited by plaintiff, the legislators were seen as monitoring and administering contracts or enforcing legislation, and thus as performing administrative or executive acts. Here, Defendants were voting on the Auditor's salary. By definition, this function affects only one individual. However, as demonstrated by the cases cited by Defendants, legislative votes affecting positions and salaries of city employees are consistently interpreted as a legislative acts. *fn3"

 Moreover, the Supreme Court holds that the overriding concern in questions of official immunity is not the scope of the acts, but a "functional" inquiry, in which the courts must "examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and . . . seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions." Forrester, supra, 484 U.S. at 223. Defendants bear the burden of showing that absolute immunity "is justified by overriding considerations of public policy . . ." Id.

 Defendants make a convincing argument under this test. If their votes to fix the auditor's salary are not protected by legislative immunity, each time they vote to fix this salary, the individual councilmembers would be subject to suit. This would chill the councilmembers' discretion to set the salary under the City Charter, and essentially force them to grant the same cost of living increases and salary adjustments to the Auditor that are provided to other city department heads. Thus the City Charter's provision for discretion would be obviated, and the public interest that Charter provisions be followed and that councilmembers be free to exercise their judgment pursuant to the Charter would be harmed. It is in the public interest that councilmembers feel free to exercise their judgment in refusing to raise the Auditor's salary without fear of burdensome litigation and personal liability for damages. See Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 404-05, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979).

 Accordingly, the Court holds that the individual councilmembers are entitled to absolute legislative immunity, and the first through seventh claims against them are accordingly dismissed with prejudice.

 Plaintiff's Section 1983 claims against the City cannot be resolved on grounds of absolute immunity. Rather, under Monell v. Dept. of Social Serv. of the City of New York, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), the official acts of municipal policy makers are acts of the municipality for purposes of Section 1983. Id. at 694; Reed v. Village of Shorewood, 704 F.2d 943, 953 (7th Cir. 1983). ...


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