Bogan v. Scott-Harris

RESPONDENT: Scott-Harris
LOCATION: National Endowment for the Arts

DOCKET NO.: 96-1569
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 523 US 44 (1998)
ARGUED: Dec 03, 1997
DECIDED: Mar 03, 1998

Charles Rothfeld - for petitioners
Charles A. Rothfeld - Argued the cause for the petitioners
Harvey A. Schwartz - Argued the cause for the respondent

Facts of the case

Janet Scott-Harris filed suit under 42 U.S.C. Section 1983 against the city of Fall River, Massachusetts, the city's mayor, Daniel Bogan, the vice president of the city counsel, Marilyn Roderick, and others, alleging that the elimination of the city department in which Scott-Harris was the sole employee was motivated by a desire to retaliate against her for exercising her First Amendment rights. The jury found the city, Bogan and Roderick liable on the First Amendment claim. The First Circuit set aside the verdict against the city, but affirmed the judgments against Bogan and Roderick. The court held that although Bogan and Roderick had absolute immunity from civil liability for their performance of legitimate legislative activities, their conduct in voting for and signing the ordinance that eliminated Scott-Harris's office was motivated by considerations relating to a particular individual and was therefore administrative rather than legislative in nature.


Are actions by local officials introducing, voting for, and signing an ordinance outside the scope of legislative activities because of the motives of the government actors?

Media for Bogan v. Scott-Harris

Audio Transcription for Oral Argument - December 03, 1997 in Bogan v. Scott-Harris

William H. Rehnquist:

We'll hear argument next in Number 96-1569, Daniel Bogan v. Janet Scott-Harris.

Mr. Rothfeld.

Charles A. Rothfeld:

Thank you, Mr. Chief Justice, and may it please the Court:

I have two principal points to make this morning.

The first is that State and regional legislators who are sued under section 1983 are entitled to absolute immunity if they acted in their legislative capacities.

Local legislators who were sued under the statute should be entitled to that same absolute immunity if they acted in their legislative capacities.

My second, and closely related point, is that--

Stephen G. Breyer:

I can't hear you very well.

I can't hear you at all.

Charles A. Rothfeld:

--Sorry, Your Honor.

My second and closely related point is that public officials at all levels of Government, regional officials, State officials, and local officials, do act legislatively, and therefore are entitled to absolute immunity when they propose legislation, vote for legislation, and enact legislation.

Now, the facts--

Stephen G. Breyer:

Are you going to at some point address the court of appeals' reason for address... for your losing, which I didn't hear in either of the first two points, because I thought the court of appeals accepted both of those points.

Charles A. Rothfeld:

--Well, the court of appeals did accept that there is absolute immunity for actions that are taken in a legislative capacity, and we agree with the court of appeals' decision on that point, a decision that I add was endorsed by every circuit.

I think... I will address the second point subsumed within my suggestion that legislators necessarily act legislatively when they propose legislation, enact legislation, which is what they did here.

There was a dispute in the court of appeals as to whether the legislation here was legislative in character within the meaning of the immunity doctrine, and I will get to that point.

As I say, the facts that underlie this are simply stated.

Respondent was the Director of the Department of Health and Human Services of the City of Fall River, Massachusetts.

The mayor of Fall River proposed a budget which eliminated a number of city positions--

Sandra Day O'Connor:

Well, I think we've read the facts.

Can we get on to the issue?

Charles A. Rothfeld:

--Certainly, Your Honor.

The reason I was touching on them simply is because I think they provide some useful context for the legal issue, but turning directly to I think what's the first underlying issue in this case, are legislators, local legislators entitled to absolute immunity--

John Paul Stevens:

On that issue, would you tell me your view of what the status of the common law was at the time of the enactment of the statute and, secondly, what the general rule was in the courts of appeals before our decision in Tahoe?

Charles A. Rothfeld:

--As to the first, I think the law, the common law was clearly settled in the 19th Century.

I think that it was the established rule, unchallenged, that local legislators were entitled to absolute immunity for their legislative actions, for actions of the sort in this case.

We have searched diligently.

We have not found a single 19th Century decision holding legislators liable for discretionary acts related to the enactment of legislation, and respondent has not cited such a case.

That statement of the law was reflected in the leading 19th Century treatises, for example, Cooley's Treatise on Torts, Dillon's Treatise on Municipal Corporations, which were written shortly after the enactment of section 1983.

Just to give you an example of a characteristic statement, Cooley in his Treatise on Torts, written in 1880, says that so far as... and I'm quoting here from Cooley.