from intruding into the sphere of the legislature. Thus, the principle of separation of powers supports a broad application of legislative immunity under the Speech and Debate Clause.
However, the principle of separation of powers is inapplicable to an analysis of absolute legislative immunity for a City Councilmember in the federal courts because the local legislature and the federal judiciary are not coordinate, equal branches of government.
Here, I do not have to worry about intruding into an area in which the Framers intended to free "the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator." Gravel, supra, 408 U.S. at 618.
Thus, I do not think that the scope of absolute immunity afforded local legislators under federal common law is as broad as that available to members of Congress under the Speech and Debate Clause.
Nor do I think that precedent supports defendant's contention that she has absolute immunity in this suit. Under federal law, state, regional and local lawmakers enjoy absolute immunity when they act in a traditional legislative capacity. Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783 (1951); Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (1980); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979).
In Tenney v. Brandhove, supra, the Court held that California legislators could not be sued where they called a committee investigation which plaintiff alleged was to intimidate him and was not for a "legislative purpose". Id., 341 U.S. at 371. The Court held that investigations were part of a legislator's duties and that the legislators were "acting in the sphere of legitimate legislative activity." Id. at 376. The Court was careful to limit its holding to the facts before it. Id. at 378-379.
Defendant cites other cases which support the proposition that non-federal legislators enjoy immunity where they engage in legislative acts. In Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir. 1980), developers and an architect sued city directors for passing an allegedly unconstitutional amendment to the city's zoning ordinance. The court found that the city directors had absolute personal immunity from suit. In Aitchison v. Raffiani, 708 F.2d 96 (3rd Cir. 1983), a former city building inspector sued the borough council for damages for wrongful discharge under the Civil Rights Act of 1871 for passing an ordinance abolishing his position. The council was held immune from suit. The cases uniformly allow local legislators absolute immunity when they perform traditional legislative functions such as the enactment of legislation or committee investigation. See e.g., Reed v. Village of Shorewood, 704 F.2d 943, 952 (7th Cir. 1983); Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829 (11th Cir. 1982).
Here, defendant was not engaged in a traditional legislative function; she was neither enacting legislation nor participating in a committee investigation. Nor was she working on any particular project which might be characterized as a traditional legislative function. Rather, she was engaged in an administrative function, that of dealing with her staff. The federal common law thus provides her no absolute immunity.
Furthermore, the rights granted in these cases are court-created rights, developed through analogy to the Speech and Debate Clause. When considering these common law rights against rights protected by the Constitution, I balance the competing interests and, in short an extremely compelling reason, I believe precedence should be given to rights guaranteed under the Constitution.
Also bolstering my opinion are several recent Supreme Court decisions indicating that the Court will provide a judicial forum where a colorable constitutional claim is presented. See Webster, Director of Intelligence v. Doe, 486 U.S. 592, 108 S. Ct. 2047, 100 L. Ed. 2d 632 (1988); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681 n.12, 90 L. Ed. 2d 623, 106 S. Ct. 2133 (1986); Bartlett v. Bowen, 259 U.S. App. D.C. 391, 816 F.2d 695 (D.C. Cir. 1987). These cases stand for the proposition that, wherever possible, federal statutes will not be construed to deny a judicial forum for a colorable constitutional claim. Webster, supra, went even further and held that a statute which gave the CIA Director authority to terminate an employee where he "shall deem it necessary or advisable" precluded judicial review of the Director's termination decisions because, under § 701(a)(2) of the APA, "they were committed to agency discretion by law" except where those decisions were challenged for constitutional defect. Cite. The same reasoning should be applied when considering whether a common law immunity strips a citizen of her right to vindicate her constitutional rights. Since plaintiff's complaint presents colorable constitutional claims, I am all the more inclined to allow her a forum.
II RETALIATORY DISMISSAL
Defendant contends that plaintiff has failed to state a claim for retaliatory dismissal for the exercise of her First Amendment right to free speech under the rule prescribed by Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), because "given that plaintiff's job was essential to the due functioning of the legislative process, Councilmember Winter was clearly justified in terminating Ms. Gross in order to effectively and efficiently fulfill her responsibilities to the public." See Defendant's Motion to Dismiss at 17. Connick does not mandate this conclusion. On the contrary, Connick made clear that since plaintiff's First Amendment interest was a limited one, at best, it was outweighed by the government's interest in the effective and efficient fulfillment of its responsibilities. Connick, supra, 461 U.S. at 154.
In contrast, here, plaintiff's First Amendment claim is a compelling and important one: she claims that she was dismissed because she spoke to the ADL concerning the denial of a two day holiday to observe Rosh Hashannah. Thus, the balance to be struck between the individual's interest in her First Amendment rights and the government's interest in efficient operation is different from that in Connick. As Connick made clear:
Because of the enormous variety of fact situations in which critical statements by . . . public employees may be thought by their superiors . . . to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged.
Pickering v. Board of Education, 391 U.S. 563, 569, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). Thus, defendant's categorical contention is incorrect.
Similarly, defendant's broad contention that under Hall v. Ford, 1987 U.S. Dist. LEXIS 14809, No. 86-2667 (D.D.C. May 27, 1987), appeal docketed, No. 87-7183 (D.C. Cir. June 26, 1987), "Councilmembers have absolute discretion as a matter of law in the hiring and firing of 'excepted service' employees such as plaintiff," see Defendant's Motion to Dismiss at 17, is incorrect. In Hall, the court concluded only that the UDC President had the unfettered discretion, under the "excepted service" provisions of the D.C. Code, to select plaintiff for the position of Athletic Director or to require plaintiff's resignation from that position. Hall, supra, at 14. In other words, the court's conclusions were limited to the facts before it and lend no support to defendant's broad assertions.
Reinforcing the decision in Hall was the fact that the nexus between the protected speech and the plaintiff's demotion was tenuous: plaintiff, former Athletic Director at UDC, had complained of violations of NCAA rules during the tenure of a different president than the one who demoted him. This weak link only strengthened the court's statement that "the District of Columbia has a significant interest in maintaining the integrity of the excepted service." Hall, supra, at 10. Based on the allegations in the complaint, there is no such tenuous link here. Rather, plaintiff exercised her First Amendment right to free speech in contacting the ADL and was, soon thereafter, terminated by her employer. The link is clear.
Thus, I think that plaintiff's claim for retaliatory dismissal is not outweighed as a matter of law by the government's interest in its efficient operation and I will allow that claim to go forward.
III COMMON LAW CLAIMS
Because this court has jurisdiction under 28 U.S.C.A. § 1343(a)(3) to consider plaintiff's constitutional claims, this court also has pendent jurisdiction to consider plaintiff's common law claims of wrongful discharge in violation of public policy, slander and intentional infliction of emotional distress. The exercise of pendent jurisdiction is proper in this case because the common law claims state separate but parallel grounds for the relief sought under the constitutional claims. See generally United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Because the common law claims closely parallel plaintiff's constitutional claims, permitting the common law claims to go forward should not impose any additional burdens on defendant.
As I have stated, I decided this Motion to Dismiss accepting the well-pled allegations of the complaint as true. As the factual record develops, there may come an appropriate time for defendant to file a motion for summary judgment. For the foregoing reasons, and upon consideration of the entire record herein, defendant's motion to dismiss is DENIED.
Dated: July 29, 1988
ORDER - August 1, 1988
For the reasons set forth in the Memorandum Opinion issued this date, it is hereby
defendant's Motion to Dismiss is DENIED.
Dated: July 29, 1988.