elected officials, including themselves. Defendants assert that Plaintiff's status as an elected official provides a rational basis for distinguishing between her and other city department heads.
Where, as here, the proffered classification does not trammel fundamental personal rights or implicate a suspect classification, it will withstand constitutional challenge if the law in question has some rational relation to a legitimate governmental interest. City of New Orleans v. Dukes, 427 U.S. 297, 303-04, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976). Under this "rational basis" test, the Court must uphold the challenged salary actions if there are any conceivable facts that reasonably constitute a distinction between Plaintiff for the purposes of salary increases; in other words, Plaintiff can prevail only if the classification was malicious, irrational, or plainly arbitrary. Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 813, 49 L. Ed. 2d 220, 96 S. Ct. 2488 (1976); U.S.D.A. v. Moreno, 413 U.S. 528, 534 (1973); Lockary v. Kayfetz, 917 F.2d 1150, 1155 (9th Cir. 1990).
Defendants assert that the distinction between elected officials and non-elected employees is rationally related to the legitimate governmental purposes of exercising budgetary restraint and promoting a public policy that the City's elected leadership seek and hold public office for the honor of serving the public, and not for renumeration. Plaintiff argues that she is similarly situated to the non-elected city department heads and not to other elected officials, and therefore the salary actions were not rationally related to Defendants' proffered policies. For the reasons discussed above, the Court holds that Plaintiff is not similarly situated to non-elected employees, and this argument fails.
Similarly unavailing are Plaintiff's arguments that neither policy concern articulated by Defendants can be seen as a legitimate government interest. The Supreme Court holds that any rational purpose possibly motivating the challenged decision will defeat an equal protection claim. See Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 463, 101 L. Ed. 2d 399, 108 S. Ct. 2481 (1988).
Accordingly, this claim is dismissed with prejudice.
D. Fourth Cause of Action: Bill of Attainder
A bill of attainder is a legislative act which inflicts punishment without a judicial trial. Nixon v. Administrator of Gen'l Serv., 433 U.S. 425, 468-69, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977). Traditionally, this constitutional provision protects against punishment for criminal or political behavior without a trial, and "punishment" connotes affirmative restraints on or deprivation of life, liberty or property or suspension of political or civil rights. See Cummings v. Missouri, 71 U.S. 277, 323, 18 L. Ed. 356 (1867); Flemming v. Nestor, 363 U.S. 603, 614-16, 4 L. Ed. 2d 1435, 80 S. Ct. 1367, reh'g denied, 364 U.S. 854, 5 L. Ed. 2d 77, 81 S. Ct. 29 (1960). While the scope of this doctrine has expanded, it is clear that governmental denial of compensation or appropriation does not constitute a bill of attainder unless the denial constitutes a ban on continuing public employment. See United States v. Lovett, 328 U.S. 303, 313-14, 90 L. Ed. 1252, 66 S. Ct. 1073 (1946); California State Employees' Ass'n v. Flournoy, 32 Cal.App.3d 219, 225-28, 108 Cal. Rptr. 251, cert. denied, 414 U.S. 1093, 38 L. Ed. 2d 550, 94 S. Ct. 724 (1973).
Accordingly, the challenged failure to increase Plaintiff's salary cannot constitute a bill of attainer as a matter of law, and this claim is dismissed with prejudice.
E. Fifth Cause of Action: Conspiracy
To state a claim for relief under 42 U.S.C. § 1985(3), Plaintiff must allege four elements: "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." United Broth. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29, 77 L. Ed. 2d 1049, 103 S. Ct. 3352, reh'g denied, 464 U.S. 875, 78 L. Ed. 2d 186, 104 S. Ct. 211 (1983). Additionally, Plaintiff must show "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). Plaintiff alleges that Defendants deprived her of her first amendment rights because of her political affiliation. Whether Section 1985(3) was intended to reach class-based animus based on political beliefs or associations has not yet been decided by the Supreme Court or the Ninth Circuit; however, other courts have determined that political groups are entitled to Section 1985(3) protection. See United Broth., supra, 463 U.S. at 837; Stevens v. Rifkin, 608 F. Supp. 710, 722 (N.D.Cal. 1984). Even if Section 1985(3) is construed to reach conspiracies aimed at political groups, Plaintiff has failed to allege sufficient facts to support her conclusory allegations that Defendants' adverse salary actions were taken because of her affiliation with a political group. See. e.g., Rifkin, supra, 608 F. Supp. at 716-17. While this deficiency could be cured by amendment, Plaintiff faces a more difficult legal hurdle with respect to her allegations of a Section 1985 conspiracy.
Since the individual Defendants are entitled to legislative immunity, Plaintiff's conspiracy claims against them must be dismissed. While only one Defendant, the City, remains in this cause of action, this fact itself is not fatal to Plaintiff's conspiracy claim; it is possible for one defendant to be immune from liability, and yet another defendant to be liable for conspiring with the immune party. Dennis v. Sparks, 449 U.S. 24, 27, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980). Accordingly, the Court must determine whether the City may be held liable under Section 1985(3) for conspiring with its own agents, the Defendant city councilmembers. To date, the Ninth Circuit has expressly declined to resolve this issue. See Portman v. County of Santa Clara, 995 F.2d 898, 910 (9th Cir. 1993); Padway v. Palches, 665 F.2d 965, 969 (9th Cir. 1982).
Other circuits are split on the issue. Some courts have held that the "intra-corporate conspiracy" doctrine applies in Section 1985 cases, holding that a governmental body cannot conspire with itself, and that individual members of a governmental body cannot conspire when they act in their official capacity to take official acts on behalf of the governing body. See Runs After v. United States, 766 F.2d 347, 354 (8th Cir. 1985); accord Gladden v. Barry, 558 F. Supp. 676, 679 (D.D.C. 1983); Edmonds v. Dillin, 485 F. Supp. 722, 729 (N.D.Ohio 1980).
Other courts have rejected application of the intra-corporate conspiracy doctrine to Section 1985 actions. See Stathos v. Bowden, 728 F.2d 15, 20-21 (1st Cir. 1984) (governmental body); Rebel Van Lines v. City of Compton, 663 F. Supp. 786, 792-93 (C.D.Cal. 1987) (governmental body); cf. Novotny v. Great American Fed. Savings & Loan Ass'n, 584 F.2d 1235, 1256-59 (3d Cir. 1978) (en banc), rev'd on other grounds, 442 U.S. 366, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979) (corporation).
For purposes of the present action, this Court finds persuasive the rationale supporting application of the intra-corporate conspiracy doctrine to bar a Section 1985 claim where the conspiratorial conduct challenged is essentially a single act by a single governmental body acting exclusively through its own officers, each acting within the scope of his or her official capacity. The intra-corporate conspiracy doctrine was first developed to preclude a corporation from being charged with conspiracy to violate the anti-trust laws "when it exercises its rights through its officers and agents, which is the only medium through which it can possibly act." Nelson Radio & Supply Co. v. Motorola, 200 F.2d 911, 914 (5th Cir. 1952), cert. denied, 345 U.S. 925, 97 L. Ed. 1356, 73 S. Ct. 783 (1953). Similarly, it defies common sense to render the same conduct for which a government entity is held liable, i.e., the official votes of individual councilmembers, as separate acts accomplished by separate conspiratorial actors other than the government entity. See Runs After, supra, 766 F.2d at 354; Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir.), cert. denied, 439 U.S. 1003, 58 L. Ed. 2d 679, 99 S. Ct. 613 (1978); cf. Stathos, supra, 728 F.2d at 21 (intra-corporate conspiracy doctrine rejected on grounds that defendants' conduct involved a series of acts over time). Plaintiff's Section 1983 claim against the City is adequate to provide potential redress for the adverse salary decisions Plaintiff complains of.
Accordingly, the Court holds that Plaintiff's Section 1985(3) conspiracy claim cannot be brought against the City for conspiring with its own officials, and this claim is dismissed with prejudice.
F. Sixth Cause of Action: Violation of City Charter
Plaintiff asserts that Defendants violated Art. VII, § 37 of the Berkeley City Charter, which prohibits various employment actions on the basis, inter alia, of political opinions or affiliations or political services. Section 37 prohibits certain employment actions from being taken against persons appointed "to position under the City Government," including "appointment to or selection for or removal from any office of employment . . . transfer, promotion, reduction, reward or punishment." Def.'s Request for Judicial Notice Exh. A. Section 37 is clearly intended to protect city employees, not elected officials. Accordingly, this cause of action is dismissed with prejudice.
G. Seventh Cause of Action: Violation of Cal. Civ. Code § 52.1
This claim tracks the language of California Civil Code Section 52.1(b), alleging interference or attempted interference through "threats, intimidation, and/or coercion" with Plaintiff's "exercise and enjoyment of the rights secured to her by the Constitution of the United States and the Constitution and laws of California and of the Charter of the City of Berkeley."
Although no California court has interpreted Section 52.1(b), the context of this section makes it clear that the statute is meant to protect against violence or the threat of violence. See Cal. Civ. Code § 52.1(j) (speech alone insufficient to support claim unless it threatens violence). Accordingly, the votes and threats alleged in the complaint are insufficiently threatening to state a claim under this section, and this claim is dismissed with prejudice.
H. Eighth Cause of Action: Defamation
Plaintiff brings this claim individually against Defendant Collignon for allegedly defamatory statements he made about her in a press release. Plaintiff cannot maintain an action for money or damages against Defendant Collignon for acts or omissions committed in the course and scope of his office unless she complied with the claims procedure of the California Tort Claims Act. Cal. Gov. Code §§ 905, 905.2; Williams v. Horvath, 16 Cal.3d 834, 838, 129 Cal. Rptr. 453, 548 P.2d 1125 (1976); Dujardin v. Ventura County Gen'l Hospital, 69 Cal.App.3d 350, 355, 138 Cal. Rptr. 20 (1977).
Plaintiff concedes that she has not filed a claim pursuant to the Tort Claims Act. However, Plaintiff claims that Collignon was acting in his personal, not official capacity, and therefore a prerequisite claim pursuant to the Tort Claims Act is not required. See Franklin v. Municipal Court, 26 Cal.App.3d 884, 901, 103 Cal. Rptr. 354 (1972). In support of this argument, Plaintiff relies on Lipman v. Brisbane Elem. School Dist., 55 Cal.2d 224, 11 Cal. Rptr. 97, 359 P.2d 465 (1961). In Lipman, the court determined that three school trustees did not act within the course and scope of their office when they made defamatory statements to newspaper reporters about the school district superintendent, and held that the trustees were not entitled to governmental immunity. Id. at 233. As Defendants point out, this is a different inquiry than that presented here, whether a public official acted within the course and scope of his or her public office for the purposes of respondeat superior under the Tort Claims Act.
Defendants rely on Sanborn v. Chronicle Pub. Co., 18 Cal.3d 406, 134 Cal. Rptr. 402, 556 P.2d 764 (1976). In Sanborn, the California Supreme Court affirmed the trial court's implied finding that the clerk of San Francisco City and County was acting within the scope of his employment when he defamed the plaintiff in a press conference, holding that it was the purpose of the act, to communicate with the press regarding his administration of a public office, rather than the nature of the act, to defame the plaintiff, which determined whether he was acting in an official capacity. Id. at 412. Accordingly, the court upheld liability of City and County of San Francisco for the clerk's conduct. Id. at 411-12.
Plaintiff's assertion that Collignon's allegedly defamatory statements were not official statements of the City of Berkeley, but instead "purely political diatribes" cannot compel a different conclusion in the case at bar. "If the object or end to be accomplished is within the employee's express or implied authority his act is deemed to be within the scope of his employment irrespective of its wrongful nature." Id. at 411 (quoting Neal v. Gatlin, 35 Cal.App.3d 871, 875, 111 Cal. Rptr. 117 (1973)). Plaintiff's complaint alleges that Collignon issued a written press release stating that "'[The Auditor's department has] historically been populated by what Collignon's colleagues call political patronage employees.'" 1st Am. Comp. P 50. Such a statement serves the purpose of informing the press and the public as to whether the Auditor's department was "performing its public duties in a rational and orderly fashion," and was therefore made within the course and scope of Collignon's official duties. Id. at 412; see also Mazzola v. Feinstein, 154 Cal.App.3d 305, 312, 201 Cal. Rptr. 148 (1984) (city supervisors' "public expression of their views on any matter of civic interest" are within the scope of their employment as a matter of law).
Accordingly, Plaintiff's claim against Collignon must be dismissed with prejudice for failure to comply with the claims procedure of the California Tort Claims Act.
1. Defendants' motion to dismiss the First Cause of Action for violation of Plaintiff's First Amendment rights is GRANTED in part, and the First Cause of Action is hereby DISMISSED with prejudice, as to the individual Defendants. Defendants' motion to dismiss the First Cause of Action is DENIED as against Defendant the City of Berkeley.
2. Defendants' motion to dismiss Plaintiff's Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Causes of Action is GRANTED, and these causes of action are hereby DISMISSED with prejudice as to all Defendants.
IT IS SO ORDERED.
Dated: June 22, 1994
UNITED STATES DISTRICT JUDGE