                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                   PUBLISH
                                                                      OCT 27 1998
                   UNITED STATES COURT OF APPEALS
                                                                  PATRICK FISHER
                                                                             Clerk
                          FOR THE TENTH CIRCUIT



 GARY KAMPLAIN,
       Plaintiff - Appellee,
 v.                                            No. 97-2144
 CURRY COUNTY BOARD OF
 COMMISSIONERS; FRANK H.
 BLACKBURN; PAUL D. BARNES;
 DARREL BOSTWICK; JOHNNY
 CHAVEZ; and JOEL DAVID
 SNIDER,

       Defendants - Appellants,

 and

 MIKE JACKSON, Sheriff, and MATT
 MURRAY, Chief Deputy,

       Defendants.




        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                    (D.C. No. CIV-96-1298-M)


Emily A. Franke (James P. Lyle with her on the briefs) of Butt, Thornton &
Baehr, P.C., Albuquerque, New Mexico, for Defendants-Appellants.

Kenneth C. Downes of Kenneth C. Downes & Associates, P.C., Albuquerque,
New Mexico, and Stephen G. French, Albuquerque, New Mexico (Christopher L.
Harlos of Kenneth C. Downes & Associates, P.C., Albuquerque, New Mexico,
with them on the brief), for Plaintiff-Appellee.
                           _________________________

Before PORFILIO, McKAY, and BRORBY, Circuit Judges.


McKAY, Circuit Judge.


      This civil rights action arose from the actions taken by the Curry County

Board of Commissioners in August 1996. Plaintiff Mr. Gary Kamplain attended a

Curry County Commission public hearing on August 6, 1996, at which he

represented his employer, Tom Growney Equipment, Inc., in the awarding of bids.

Plaintiff was removed from the public hearing after he protested the Board’s

award of a bid to a competitor of his employer. At the regularly scheduled Board

meeting on August 20, 1996, the Board voted to ban Plaintiff from all future

Commission meetings. The Board notified Plaintiff and his employer of its action

by letter. After receiving a letter of complaint from Plaintiff’s attorney, the Curry

County Attorney sent a letter dated August 27, 1996, to Plaintiff’s attorney

informing Plaintiff that, while he could attend Commission meetings, he would

not be permitted to speak before or participate in discussions with the Board.

      Plaintiff filed this 42 U.S.C. § 1983 action for injunctive relief and

damages in which he alleged that his First Amendment right to free speech was




                                         -2-
violated. 1 Defendants, the Board and individual members of the Board, 2 filed a

Federal Rule of Civil Procedure 12(b)(6) motion to dismiss on grounds of

absolute legislative immunity. Defendants appeal the district court’s denial of

their motion to dismiss. In addition, the district court retained jurisdiction

pending this appeal after certifying that the appeal was frivolous. See United

States v. Hines, 689 F.2d 934, 936-37 (10th Cir. 1983). Citing the district court’s

certification of Defendants’ appeal as frivolous, Plaintiff moves this court for

damages and costs pursuant to Federal Rule of Appellate Procedure 38.

      We have jurisdiction to address whether Plaintiff’s claims are barred by

absolute legislative immunity because the district court’s denial of immunity

“turns on an issue of law,” and, therefore, it “is an appealable ‘final decision’

within the meaning of 28 U.S.C. § 1291.” Mitchell v. Forsyth, 472 U.S. 511, 530

(1985). We review de novo the decision of the district court denying a motion to

dismiss based on absolute immunity. See id.; Gagan v. Norton, 35 F.3d 1473,

1475 (10th Cir. 1994), cert. denied sub nom. Ritz v. Gagan, 513 U.S. 1183

(1995). Because the district court denied a Rule 12(b)(6) motion to dismiss, we


      Plaintiff also alleged violations of the New Mexico Tort Claims Act and
      1

the New Mexico Open Meeting Act, pendent state claims which we do not address
here.
      2
        The individual members of the Board are Frank H. Blackburn, Paul D.
Barnes, Darrel Bostwick, Johnny Chavez, and Joel David Snider. Although the
sheriff and the deputy sheriff who removed Plaintiff from the meeting were also
sued, they do not appeal the immunity issue before us.

                                         -3-
confine our review to the allegations set forth in the complaint, accept all well-

pleaded allegations in the complaint as true, and draw all reasonable inferences in

Plaintiff’s favor. See Gagan, 35 F.3d at 1475.

      The concept of legislative immunity is well established in this circuit, see,

e.g., Fry v. Board of County Comm’rs, 7 F.3d 936, 942 (10th Cir. 1993), and the

Supreme Court recently confirmed that, like their federal, state, and regional

counterparts, “[l]ocal legislators are entitled to absolute immunity from § 1983

liability for their legislative activities.” Bogan v. Scott-Harris,   U.S.   , 118

S. Ct. 966, 972 (1998); see also U.S. Const. art. 1, § 6 (Speech or Debate Clause);

Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 404-

05 (1979) (extending immunity rule to regional legislators); Tenney v. Brandhove,

341 U.S. 367, 378-79 (1951) (holding that state legislators were absolutely

privileged in their legislative acts). The Supreme Court, however, “has been

careful not to extend the scope of [legislative immunity] protection further than

its purposes require,” Forrester v. White, 484 U.S. 219, 224 (1988), and the

government official seeking immunity bears the burden of showing that an

exemption from personal liability is justified. See id. Legislative immunity thus

extends to legislators only when they are acting “in the sphere of legitimate

legislative activity.” Tenney, 341 U.S. at 376.

      In order to determine whether Defendants should be cloaked in legislative


                                          -4-
immunity, we look to the function that the Board members were performing when

the actions at issue took place, see Forrester, 484 U.S. at 224, and we examine the

nature of those actions. See Bogan, 118 S. Ct. at 973 (“Whether an act is

legislative turns on the nature of the act, rather than on the motive or intent of the

official performing it.”); see also Cinevision Corp. v. City of Burbank, 745 F.2d

560, 579 (9th Cir. 1984) (“The critical concern in our inquiry [is] the nature of

the action on which the vote was taken.”), cert. denied, 471 U.S. 1054 (1985).

“‘The essentials of the legislative function are the determination of the legislative

policy and its formulation and promulgation as a defined and binding rule of

conduct.’” Cinevision, 745 F.2d at 580 (quoting Yakus v. United States, 321 U.S.

414, 424 (1944) (holding that Emergency Price Control Act of 1942 did not

unconstitutionally delegate the legislative power of Congress)); see also Prentis v.

Atlantic Coast Line Co., 211 U.S. 210, 226 (1908) (“Legislation . . . 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.”). Further, legislative

actions must be done “‘in relation to the business before’” the legislative body.

Powell v. McCormack, 395 U.S. 486, 502 (1969) (quoting Kilbourn v. Thompson,

103 U.S. 168, 204 (1881)); see also Fry, 7 F.3d at 942 (upholding district court

finding that “‘the legislative process was at work’” in the challenged action).

Thus, the Supreme Court has instructed us, in admittedly differing contexts, that,


                                          -5-
at its core, the legislative function involves determining, formulating, and making

policy.

      We are not persuaded by the approach taken by some of our sister circuits

in determining legislative capacity or function. These courts rest their analysis on

the number of persons affected by a legislative body’s decision. See Ryan v.

Burlington County, N.J., 889 F.2d 1286, 1291 (3d Cir. 1989) ( “Where the

decision affects a small number or a single individual, the legislative power is not

implicated, and the act takes on the nature of administration.”); Haskell v.

Washington Township, 864 F.2d 1266, 1278 (6th Cir. 1988) (noting, in the

context of a zoning action, that if “‘the action single[s] out specifiable individuals

and affect[s] them differently from others, it is administrative’” (citations

omitted)). But see Acierno v. Cloutier, 40 F.3d 597, 610 (3d Cir. 1994) (stating

that numbers inquiry in Ryan is not conclusive test for determining what is

legislative or administrative). Other courts have limited immunity to functions

involving legislative speech and debate, voting, preparing committee reports,

conducting committee hearings, and other “integral steps in the legislative

process.” Bogan, 118 S. Ct. at 973; see, e.g., Hansen v. Bennett, 948 F.2d 397,

402 (7th Cir. 1991), cert. denied, 504 U.S. 910 (1992).

      Not all actions taken at a legislative meeting by a local legislator are

legislative for purposes of immunity. See Roberson v. Mullins, 29 F.3d 132, 134


                                          -6-
(4th Cir. 1994); accord Brown v. Griesenauer, 970 F.2d 431, 437 (8th Cir. 1992)

(holding that impeachment proceedings are essentially judicial or adjudicatory in

nature despite legislative decision-making body and form of proceedings);

Hansen, 948 F.2d at 402-03 (holding that mayor was not acting in a legislative

capacity when he restored order and regulated discussions at a public meeting);

Cinevision, 745 F.2d at 580 (holding that city councilperson’s vote to disapprove

plaintiff’s proposed concerts at city amphitheater was an executive, not a

legislative act); Detz v. Hoover, 539 F. Supp. 532, 534 (E.D. Pa. 1982) (holding

that a municipality’s employment decisions are “essentially administrative in

nature” (emphasis omitted)). Nor does voting on an issue, in and of itself,

determine that the act is legislative in nature. See Smith v. Lomax, 45 F.3d 402,

406 (11th Cir. 1995); Roberson, 29 F.3d at 134 n.3; Cinevision, 745 F.2d at 580.

“Whether actions . . . are, in law and fact, an exercise of legislative power

depends not on their form but upon ‘whether they contain matter which is

properly to be regarded as legislative in its character and effect.’” INS v. Chada,

462 U.S. 919, 952 (1983) (citation omitted); accord Roberson, 29 F.3d at 135;

Chicago Miracle Temple Church, Inc. v. Fox, 901 F. Supp. 1333, 1343-44 (N.D.

Ill. 1995).

       At issue here is not the Board’s ejection of Plaintiff from the public

meeting but its vote to ban Plaintiff from all future Commission meetings and its


                                          -7-
subsequent decision to prohibit Plaintiff from participating in or speaking before

the Board at Curry County Commission meetings. 3 After considering the function

and character of the Board’s actions, we conclude that its ban of Plaintiff from

attending Commission meetings and its subsequent decision to prohibit Plaintiff

from speaking at or participating in meetings were administrative acts. Because

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

public policy, we cannot say that the bans were related to any legislation or

legislative function. The Board’s decisions to ban Plaintiff were simply efforts to

monitor and discipline his presence and conduct at future Commission meetings.

In voting to censure Plaintiff and prevent him from disrupting future public

meetings, 4 the Board members were not voting on, speaking on, or investigating a

      3
        It is unclear from the record whether the Board’s decision to allow
Plaintiff to attend the Commission meetings while prohibiting his participation or
speech at those meetings was the result of a separate Board meeting and vote.
The record also does not indicate whether the Board conducted any legislative
business at the meeting in which it decided to ban Plaintiff’s attendance. Even if
the meeting or meetings were partially legislative in nature, that fact alone does
not determine whether the decisions to ban Plaintiff from attending, participating,
and speaking at Commission meetings were legislative in nature. See Forrester,
484 U.S. at 223-24; see also Hansen, 948 F.2d at 402 n.12, 404 (relying on fact
that city council meeting included mixture of legislative, executive, and
administrative functions to determine that mayor was not entitled to legislative
immunity).
      4
       We point out that our inquiry into the nature of the acts at issue in this
case, and the function of the Board members in committing those acts, does not
conflict with the long-held principle that a legislator’s or legislature’s motive is
not a proper consideration for legislative immunity. See United States v.
                                                                         (continued...)

                                          -8-
legislative issue. See Hansen, 948 F.2d at 403. 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.

      Further, even if we accept Defendants’ claim that the Board acted in

relation to the business of awarding bids, 5 we believe that the function of

awarding of bids is essentially an administrative or executive function. Awarding

bids and purchasing county property are actions whereby the Board applies known

rules and legislation to make an administrative business decision. Accord

Cinevision, 745 F.2d at 580 (holding that city councilperson’s voting on proposed

concerts constituted administration of its contract with Cinevision); Fox, 901 F.

Supp. at 1343-44 (holding that village board vote to authorize purchase offer for

property was not legislative act because it was not an enactment or promulgation

of public policy); Lacorte v. Hudacs, 884 F. Supp. 64, 70-71 (N.D.N.Y. 1995)


      4
       (...continued)
Brewster, 408 U.S. 501, 526 (1972); Tenney, 341 U.S. at 378; accord Fry, 7 F.3d
at 942. Moreover, we do not express an opinion on whether the Board’s actions
to prevent or curtail Plaintiff’s actions or speech during a public Commission
meeting are constitutionally valid.
      5
        We doubt that the Board’s actions were more than incidentally related to
legislative business, see Hansen, 948 F.2d at 403, and we emphasize that
legislative immunity “does not prohibit inquiry into activities that are casually or
incidentally related to legislative affairs but not a part of the legislative process
itself.” Brewster, 408 U.S. at 528.

                                         -9-
(concluding that adoption of resolution denying contract to alleged low-bidders

was more properly characterized as an administrative act); Three Rivers

Cablevision, Inc. v. City of Pittsburgh, 502 F. Supp. 1118, 1136 (W.D. Pa. 1980)

(holding that city council vote to award competitively bid contract “was clearly an

administrative act”); cf. Rateree v. Rocket, 852 F.2d 946, 951 (7th Cir. 1988)

(holding that vote on city budget constituted act in commissioners’ legislative

capacity).

      Thus, because Defendants were acting in an administrative capacity when

they banned Plaintiff’s attendance, participation, and speech at Commission

meetings, they are not entitled to absolute legislative immunity. “[W]e cannot see

how [Defendants’] independence as . . . legislator[s]–[their] ability to vote and

speak freely on legislative matters–is implicated” by the decision to ban an

individual from participating and speaking in a Curry County Commission public

meeting. Hansen, 948 F.2d at 404. For these reasons, we affirm the district

court’s denial of the motion to dismiss. 6

      AFFIRMED.



      6
        We also deny Plaintiff’s motion for costs and damages pursuant to Federal
Rule of Appellate Procedure 38. An appeal is not frivolous where the issue of
absolute legislative immunity, together with the particular facts and context of the
case, has not been previously analyzed by this court. Defendants have not
appealed the district court’s frivolousness certification and retention of
jurisdiction.

                                         -10-
