                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1324
                         ___________________________

                        John L. Young; Georgetta I. Young

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

 Mercer County Commission, A Missouri Political Subdivision; Clifford Shipley,
  individually, and his official capacity as Mercer County Commissioner; Zack
Martin, individually, and in his official capacity as Mercer County Commissioner;
Shane Grooms, individually, and in his official capacity as Mercer County Commissioner

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                     Appeal from United States District Court
                  for the Western District of Missouri - St. Joseph
                                  ____________

                           Submitted: September 22, 2016
                              Filed: February 27, 2017
                                    [Published]
                                   ____________

Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
                         ____________

SHEPHERD, Circuit Judge.

     John and Georgetta Young brought this action against Clifford Shipley, Shane
Grooms, and Zach Martin individually and in their official capacities as Mercer
County Commissioners, and the Mercer County Commission. The district court1
granted Defendants’ motion for summary judgment, finding that they were protected
by absolute legislative immunity and qualified immunity, and the Youngs appealed.
For the reasons stated herein, we affirm.

                                    I. Background

       Viewed in the light most favorable to the Youngs as the non-moving parties,
the facts relevant to this appeal are as follows. See Tolan v. Cotton, 134 S. Ct. 1861,
1866 (2014). Mr. Young is the elected part-time prosecutor for Mercer County,
Missouri, and he also operates a private law practice there. The Youngs own a home
and an office building in Mercer County.

        Mr. Young and the Commission2 entered into the “Prosecutor/County Lease
Agreement” (the “Agreement”) covering the Youngs’ office building. Pursuant to the
Agreement, the office building was designated as Mr. Young’s private law office and
that of the prosecuting attorney. Additionally, the parties set forth the following
terms in the Agreement: (1) the Commission was to provide one full-time secretary,
a telephone, and office supplies; (2) Mr. Young was to pay for utilities, internet, and
liability insurance for the building; and (3) the Commission was to pay Mr. Young
$350.00 monthly “for rent . . . to offset expenses being paid privately for said office.”
J.A. 240.



      1
       The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
      2
        References to the “Commission” include the Mercer County Commission and
the three named defendants in their official capacities. See Kentucky v. Graham, 473
U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other than name,
to be treated as a suit against the entity.” (citing Brandon v. Holt, 469 U.S. 464, 471-
72 (1985))).

                                          -2-
       On June 27, 2013, the Commission passed ordinance number 06272013 (the
“911 Ordinance”), which mandated that every resident of the county be assigned a
permanent 911 address. To facilitate location by emergency responders, the 911
Ordinance directed the Commission to place an address sign where each residential
driveway meets the adjoining county or state road. The Youngs’ home sits on the
corner of United States Highway 65 and a county road named Gaza Place. As a result
of the 911 Ordinance, the Youngs’ address was changed in October 2013 from “Route
1, Box 34” to “20667 Gaza Place.” Shortly thereafter, the Youngs began contesting
this change of address because, they argued, the Gaza Place address sent visitors to
the side of their house and “a name such as Gaza that people are likely to associate
with Middle Eastern conflict arguably is not popular.” Appellants’ Br. 6. Over the
next several months, the Youngs repeatedly requested that the Commission change
their address to reflect a location on Highway 65.

       At some point during the Fall of 2013, Mr. Young began insinuating that he
would take legal action to resolve the address dispute, and the Commission hired
attorneys Matthew Aplington and Ivan Shraeder to look into the matter. As part of
this representation, the Commission provided these attorneys with a copy of the
Agreement, and Mr. Shraeder advised the Commission that the Agreement violated
the Missouri Constitution. Specifically, he identified as problematic the
Commission’s payment of public money to Mr. Young in the form of rent and Mr.
Young’s use of the full-time prosecutorial secretary for work arising out of his private
practice.

       Thereafter, four events occurred that form the basis of the present suit. First,
in December of 2013, the Commission denied Mr. Young’s proposed budget request
for part-time secretarial assistance in the amount of $5000. Then, on March 31, 2014,
the Commission terminated the Agreement and made available space in the county
courthouse for the prosecutor’s office; suspended the $350.00 monthly rental
payments; and wrote a letter to the state attorney general requesting further

                                          -3-
investigation into the arrangement called for in the Agreement. The latter three
actions were all taken at the behest of Mr. Shraeder.

       On August 19, 2014, the Youngs brought this action, asserting a number of
claims centered on their contention that the defendants took the above actions in
retaliation for their address complaints. Taken from the operative complaint, those
claims are as follows: Count 1 sought a declaratory judgment or injunction to prevent
the Commission from assigning to the Youngs a Gaza Place address, to declare the
911 Ordinance invalid, and to prevent any further acts of retaliation. Count 2
requested damages from Shipley, Grooms, and Martin in their individual capacities
under 42 U.S.C. § 1983 for retaliation in violation of the Youngs’ First Amendment
rights. Finally, Count 3 asserted that the 911 Ordinance’s mandate that an address
sign be placed on the Youngs’ property constituted a taking in violation of the Fifth
Amendment.

       The defendants moved to dismiss the complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, and the district court issued an order granting this
motion in part and denying it in part.3 Specifically, the court determined that the
defendants had absolute legislative immunity for their actions in passing the 911
Ordinance and assigning to the Youngs the Gaza Place address, that the court would
not invalidate the ordinance, and that the Youngs’ takings claim failed to the extent
it sought recovery based on the particular address assignment. However, the court
denied the motion insofar as it sought to dismiss the retaliation and takings claims.
It found, based on the record as it existed at that time, that the defendants were not


      3
       This same order granted the Youngs’ motion for leave to file their second
amended complaint with the claims outlined above. In that order, the court noted that
granting leave to file the amended complaint would normally moot a pending motion
to dismiss. However, because the parties agreed that the arguments controlled both
the original and amended complaints, the court went on to address the defendants’
motion to dismiss.

                                         -4-
entitled to legislative immunity for the complained-of actions and that the takings
claim could proceed based on the permanent address sign required by the ordinance.

        After further discovery, the defendants filed a motion for summary judgment
arguing that the retaliation claims were barred by legislative immunity and that the
takings claim failed because the Commission was authorized by Missouri law to erect
address signs. The district court granted this motion. Dismissing the takings claim,
the court found that the placement of an address sign on the Youngs’ property was
neither a per se nor a regulatory taking. The Youngs do not appeal this dismissal. As
to the retaliation claim, the court held that all four of the above actions were protected
by legislative immunity or, in the alternative, by qualified immunity.4 It is from this
latter ruling that the Youngs seek review.

                                     II. Discussion

      We review de novo the district court’s grant of summary judgment on the basis
of immunity. See Gatlin ex. rel. Estate of Gatlin v. Green, 362 F.3d 1089, 1092 (8th
Cir. 2004) (applying standard to qualified immunity); Redwood Vill. P’ship v.
Graham, 26 F.3d 839, 840 (8th Cir. 1994) (applying standard to absolute immunity).
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).

       At issue is whether the aforementioned actions are protected by either
legislative or qualified immunity. At the outset, however, we must first identify the
specific defendants from whom the Youngs seek damages. According to their brief,


      4
     The district court limited its ruling on the qualified immunity issue to the
Commission’s actions in terminating the Agreement, suspending the $350.00
payments, and requesting the attorney general investigation.

                                           -5-
the Youngs have only appealed the dismissal of their “claim for damages resulting
from retaliation in violation of the First Amendment.” Appellants’ Br. vii. In Count
II of their Second Amended Complaint,5 the Youngs specifically claim “Defendants
Shipley, Martin, and Grooms” are responsible for the complained-of retaliation. Pls.’
Second Am. Compl. ¶ 55, ECF No. 78. Notably absent from any of the Youngs’
pleadings in this matter is a claim that any specific Mercer County policy or practice
was responsible for the alleged retaliation. As a result, the only defendants from
whom the Youngs could conceivably recover money damages are these three
Commissioners in their individual capacities. See Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 691 (1978) (“Congress did not intend municipalities to be held liable unless
action pursuant to official municipal policy of some nature caused a constitutional
tort.”); Zepp v. Rehrmann, 79 F.3d 381, 385 (4th Cir. 1996). Therefore, the only
claim on appeal is the Youngs’ claim for damages for retaliation against defendants
Shipley, Martin, and Grooms in their individual capacities.

       In short, the Youngs argue that the Commissioners’6 actions were taken in
retaliation for the Youngs exercising their First Amendment rights by complaining
about the address assigned to their home under the 911 Ordinance. The Youngs
contend that the actions singled them out rather than formulated broad public policy
and that the actions were administrative, rather than legislative, in nature. As such,
the Youngs argue that none of the actions fall within “the sphere of legitimate
legislative activity,” see Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998) (quoting
Tenney v. Brandhove, 341 U.S. 367, 376 (1951)) (internal quotation marks omitted),
and are therefore not protected by absolute legislative immunity. Alternatively, the
Youngs contend there are genuine disputes of material fact that preclude the district



      5
          Count II is the only claim for damages present in this action.
      6
       References to the “Commissioners” are to defendants Clifford Shipley, Zach
Martin, and Shane Grooms in their individual capacities.

                                           -6-
court’s grant of qualified immunity. We address legislative immunity first and then
turn our attention to qualified immunity.

                                A. Legislative Immunity

        After noting that state and regional legislators possessed absolute immunity for
their legislative activities, the Supreme Court held in Bogan v. Scott-Harris that “local
legislators are likewise absolutely immune from suit under § 1983 for their legislative
activities.” 523 U.S. at 49. “Regardless of the level of government, the exercise of
legislative discretion should not be inhibited by judicial interference or distorted by
the fear of personal liability.” Id. at 52. This “immunity attaches to all actions taken
‘in the sphere of legitimate legislative activity.’” Id. at 54 (quoting Tenney, 341 U.S.
at 376).

       “When determining whether an act is legislative, the Supreme Court applies a
functional test.” Leapheart v. Williamson, 705 F.3d 310, 313 (8th Cir. 2013). Under
this test, “‘[w]hether an act is legislative turns on the nature of the act, rather than on
the motive or intent of the official performing it.’” Id. (alteration in original) (quoting
Bogan, 523 U.S. at 54). “A legislator's potential or alleged motives are ‘wholly
irrelevant to [the] determination of whether [a legislator is] entitled to legislative
immunity.’” Id. at 313-14 (alterations in original) (quoting State Emps. Bargaining
Agent Coal. v. Rowland, 494 F.3d 71, 90 (2d Cir. 2007)). Therefore, the primary
question is “whether, stripped of all considerations of intent and motive, [the] actions
were legislative.” Bogan, 523 U.S. at 55.

      Certain actions—such as voting for an ordinance—are by their nature
“quintessentially legislative.” Id. At the most basic level, “[l]egislation . . . looks 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.” Leapheart, 705 F.3d at
313 (second alteration in original) (quoting Prentis v. Atl. Coast Line Co., 211 U.S.

                                           -7-
210, 226 (1908)) (internal quotation marks omitted). As a result, the parties agree
that the Commissioners are entitled to legislative immunity for passing the 911
Ordinance.

       The Youngs argue, however, that the Commissioners are not entitled to
legislative immunity for denying Mr. Young’s budget request for part-time help. We
disagree. An action that “reflect[s] a discretionary, policymaking decision
implicating the budgetary priorities of the [county]” falls within the sphere of
legislative activity. Bogan, 523 U.S. at 55-56. As do those governing “a field where
legislators traditionally have power to act.” See id. at 56 (quoting Tenney, 341 U.S.
at 379) (internal quotation marks omitted). Under Missouri law, “the county
commission may revise, alter, increase or decrease the items contained in the budget
and may eliminate any item or add new items.” Mo. Ann. Stat. § 50.610. Therefore,
decisions about whether to approve or deny proposed budget items fall squarely
within the discretion of the Commission as a legislative body, and we have little
difficulty concluding that the Commissioners are entitled to legislative immunity for
their action denying Mr. Young’s budget request for part-time assistance.

      The Youngs next contend that the Commissioners are not entitled to legislative
immunity for terminating the Agreement and ceasing the $350.00 monthly rent
payments due thereunder.7 On this point, the Youngs argue this action cannot be
budgetary because the Commissioners terminated the Agreement in March of 2014
and the budget for that year was finalized in December of 2013. Alternatively, the


      7
       Although the Youngs’ counsel seemed to treat these two points separately
during oral argument, the issues merit joint discussion because the location of the
prosecutor’s office and the rental payments were both called for by the Agreement.
Therefore, when the Commission terminated the Agreement, there was no need to
continue paying rent. Moreover, the Youngs only make a single reference to the rent
payments in the context of legislative immunity; the rest of the argument is focused
on the Commission’s termination of the Agreement.

                                        -8-
Youngs assert that the district court erroneously concluded the Commissioners’
decision would affect future Mercer County prosecutors. Finally, using language
from several of the cases cited above, the Youngs contend that terminating the
Agreement was not within the sphere of legislative activity because no legislation
resulted from it and the action was not a necessary step in the passage of legislation.

       Although this is a closer question, we believe the district court correctly ruled
the Commissioners are entitled to legislative immunity for their termination of the
Agreement and cessation of rent payments. As we have noted, “the various activities
of most [government] officials cannot be [easily or definitively] characterized as only
administrative, legislative, or judicial.” Brown v. Griesenauer, 970 F.2d 431, 436
(8th Cir. 1992) (alterations in original) (quoting Haskell v. Wash. Twp., 864 F.2d
1266, 1277-78 (6th Cir. 1988)) (internal quotation marks omitted). Characterization
difficulties become even more prominent at the regional level because of the
differences between the duties of state and federal legislators and those at a purely
local level.

       Under section 49.510 of the Missouri Annotated Statutes, “[i]t shall be the duty
of the county to provide offices or space where the officers of the county may
properly carry on and perform the duties and functions of their respective offices.”
Moreover, the funding for this matter shall be “paid out of the county treasury of said
county at the time and in the manner that the county commission may direct.” Id.
Thus, regardless of whether the decision to terminate the Agreement was budgetary
or an independent act, the Commission is the legislative body tasked with housing
and funding the county offices. When the Commission discovered the Agreement
was possibly in violation of the state constitution, the Commissioners were entitled
to take action to remedy the situation.

      We reject the Youngs’ argument that the district court improperly considered
the potential consequences of the action. See Bogan, 523 U.S. at 56 (in determining

                                          -9-
an activity to be legislative, noting that the activity “may have prospective
implications that reach well beyond the particular occupant of the office”).
Establishing office space in the courthouse for the county prosecutor would affect
Young and future prosecutors alike. Moreover, the Youngs adopt far too narrow a
reading of precedent in their argument that this cannot be a legislative action because
no legislation resulted from it. Under Missouri law, the County Commission is tasked
with completing a variety of duties to facilitate the operation of Mercer County. In
this instance, the Commissioners met as a legislative body and voted on the
appropriate course of action to deal with the possible illegality of a contract into
which they had entered. See Mo. Ann. Stat. § 49.070 (requiring a quorum for the
county commissions to conduct business). That course of action was legislative,
regardless of whether it resulted in an ordinance.

       We conclude that the district court correctly ruled that the Commissioners are
entitled to legislative immunity for denying Mr. Young’s budget request, terminating
the Agreement, and ceasing the $350.00 monthly rental payments.

                               B. Qualified Immunity

       The district court properly found that the Commissioners are entitled to
qualified immunity as to their request that the state attorney general review the
legality of the Agreement. “The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[C]ourts may grant qualified
immunity on the ground that a purported right was not ‘clearly established’ by prior
case law, without resolving the often more difficult question whether the purported
right exists at all.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (citing Pearson,
555 U.S. at 227). “A clearly established right is one that is ‘sufficiently clear that

                                         -10-
every reasonable official would have understood that what he is doing violates that
right.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Reichle, 132 S. Ct.
at 2093).

       The Youngs’ argument on this point focuses on their broad contention that “the
right to criticize elected officials and seek redress of grievance[s] was clearly
established well before the events giving rise to the Youngs’ retaliation claim.”
Appellants’ Br. 41. The problem with this argument is the same one the Supreme
Court confronted in Reichle where the respondent argued that “cases have settled the
rule that, as a general matter[,] the First Amendment prohibits government officials
from subjecting an individual to retaliatory actions for his speech.” 132 S. Ct. at
2093-94 (alteration in original) (internal quotation marks omitted). Here, as in
Reichle, “the right allegedly violated must be established, not as a broad general
proposition, but in a particularized sense so that the contours of the right are clear to
a reasonable official.” Id. at 2094 (citations omitted) (internal quotation marks
omitted). Therefore, the Youngs need to establish that on March 31, 2014, when the
Commissioners wrote the letter to the state attorney general to request the
investigation, they would have understood that the request violated the Youngs’
constitutional rights. See Mullenix, 136 S. Ct. at 308. However, no authority has
been presented for the proposition that legislators, informed by independent counsel
that an agreement may be legally unsound and advised by that counsel to ask the
attorney general to investigate the matter, may not follow that advice. See Kincade
v. City of Blue Springs, 64 F.3d 389, 399 (8th Cir. 1995) (“Reliance on the advice of
counsel is a factor to be weighed in assessing whether a public official is entitled to
qualified immunity.”).        The district court correctly determined that the
Commissioners were entitled to qualified immunity for this action.




                                          -11-
                                          III.

      For these reasons, we affirm the district court’s grant of summary judgment to
the Commissioners.

MELLOY, Circuit Judge, concurring.

       I concur because the district court correctly granted summary judgment to the
Commissioners. I write separately, however, because I believe the Commissioners’
actions of terminating the Agreement and ceasing the $350 monthly rent payments
were not legislative. Rather, the Commissioners are entitled to qualified immunity,
not legislative immunity, for these actions.

      The majority holds that because the Commissioners acted pursuant to section
49.510 of the Missouri Annotated Statues, the decision to terminate the Agreement
was legislative. To determine whether the Commissioners’ decision was legislative,
and thus entitled to legislative immunity, “the critical inquiry is in what capacity the
[Commission was] acting at the time of the allegedly unconstitutional or unlawful
conduct.” Brown v. Griesenauer, 970 F.2d 431, 436 (8th Cir. 1992). In Brown, this
Court held that although state law authorized local legislators’ challenged action, the
action was not truly legislative. Id. at 437. The Court explained that the act
challenged in that case, impeaching the mayor, was “not a ‘classic’ legislative
function such as enacting ordinances or establishing municipal policy.” Id.

       The majority explains that the Commissioners’ decision to terminate the
Agreement and establish an office in the courthouse affected Young and future
prosecutors alike. The Commissioners, however, did not terminate the Agreement
because they decided that present and future prosecuting attorneys should have an
office in the courthouse. The termination letter mentioned only that the Agreement
was unconstitutional; it made no reference to future prosecuting attorneys or where

                                         -12-
they might hold their office. A decision that something is unconstitutional is
“essentially judicial or adjudicatory in nature, even though the decision-making body
. . . [is] legislative. ‘A judicial inquiry investigates, declares and enforces liabilities
as they stand on present or past facts and under laws supposed already to exist.’” Id.
(quoting Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226 (1908)). As a result, the
decision to cease rent payments and terminate the Agreement was not legislative and,
therefore, the Commissioners are not entitled to legislative immunity.

       I would hold, instead, that the Commissioners are entitled to qualified
immunity for ceasing rent payments and terminating the Agreement. As the majority
states, Young has not established that when the Commissioners took these actions on
March 31, 2014, “every reasonable official would have understood that” those actions
violated the Youngs’ constitutional rights. See Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (citation omitted). Similarly, as the majority notes regarding the
Commissioners’ letter to the state attorney general, Young has not presented any
authority for the proposition that the Commissioners’ could not rely on independent
counsel, who informed the Commissioners that the Agreement was unconstitutional
and advised them to terminate the Agreement. See Kincade v. City of Blue Springs,
64 F.3d 389, 399 (8th Cir. 1995). Thus, the Commissioners are entitled to qualified
immunity for these actions.
                       ______________________________




                                           -13-
