It Is Good To Be The King: Councilmembers Personally Immune From Charges Of Retaliatory Eminent Domain Abuse

You may remember Mel Brooks' History of the World: Part I, where Brooks, as King Louis XIV, turns to the camera and exclaims "it's good to be the King!" each time he takes advantage of one of his subjects.

Well, it turns out that it really is good.

In Sable v. Myers, No. 07-6286 (10th Cir. Apr. 24, 2009), the U.S. Court of Appeals held that city councilpersons are absolutely immune from claims they used the domain power to take the property of an owner as retaliation for his having successfully brought a quiet title action against the city. 

Mr. Sable's property was immediately north of the city's public works facility.  His predecessor in title had adversely possessed from the city a portion of a former city street on the southern boundary of the property, and this "strip" was fenced in along with Sable's main parcel.  The city wanted to expand the public works facility and entered into negotiations with Sable to purchase the strip, but he eventually refused to sell.  After Sable's state-court quiet title suit began gaining traction, however, the city council voted to condemn both the strip and Sable's main property.  The Tenth Circuit highlighted the council's deliberations which formed the basis for Sable's belief:

Before the vote the Council discussed its power to acquire Mr. Sable’s property even if he did not want to sell it:

VICE-MAYOR FELTON: But in any case, could we acquire [Mr. Sable’s land], though? I mean, if [Mr. Sable] didn’t want to sell it?

JOHN WILLIAMS [a private attorney apparently retained by the City]: Yes, we can.

VICE-MAYOR FELTON: Just because of where it’s sitting, and why we want it?

CITY ATTORNEY MOLER: That’s right. If it’s for a public purpose—

Id. Vol. III at 872. At that point, as we understand the transcript of the meeting, various conversations began simultaneously.  But one exchange (on which Mr. Sable relies to show Defendants’ improper motive) was recorded:

COUNCILMAN RAWLS: . . . There’s none.

VICE-MAYOR FELTON: It’s good to be King.

Slip op. at 4.  When the city instituted condemnation proceedings Sable objected, but the state courts upheld the taking as having a public purpose. Sable then filed suit in state court against the councilpersons and the city, seeking damages under 42 U.S.C. § 1983 for a retaliatory taking. The city removed the suit to federal court, which declined to grant the councilpersons absolute legislative immunity, and the appeal to the Tenth Circuit followed.   The Tenth Circuit held that decisions to condemn property are legislative judgments, and the councilmembers were thus completely immune from suit, regardless of their motivations:

The decision to expand the public-works facility was neither an administrative matter (such as the conduct of a meeting) nor an essentially ministerial task (as when applying the law and predetermined criteria to select a bid). Oklahoma law authorizes municipalities to exercise the power of eminent domain to obtain land for public works. The City's decision to take Mr. Sable's land was undoubtedly an exercise of discretion regarding a matter of public policy that would impact the functioning of public services for years to come. That the councilors may have exercised that discretion on the basis of motives that were irrelevant to public purposes does not affect the councilors' legislative immunity.

Slip op. at 12-13 (citations omitted). This case isn't all that groundbreaking on the legal issue -- legislators are generally completely personally immune from suits involving their legislative decisions -- but does give a peek behind the curtain at how and why decisions to take property are often made. The opinion ended with a recognition that while the legislators are immune, the city itself is not:

We appreciate the discomfort that may arise from the recognition of legislative immunity in this case. Mr. Sable's allegations (whose truth has not been adjudicated) create an ugly picture of the abuse of public power to achieve improper ends. Perhaps such pettiness is more likely to arise in municipal legislative bodies than in legislatures with more members and broader jurisdiction. It is also true, however, that charges of improper motive are likely easier to bring at the local-government level. And the honor and fortune that come from service in local government are slight enough that many capable candidates for municipal office would surely forgo the rewards of such service if faced with the possibility of being sued for every decision taken without public consensus. Moreover, those mistreated by municipal legislators are not without remedy. Not only are political remedies available, but a municipality, as opposed to its officials, is subject to suit under § 1983. History has shown that the greater good comes from protecting legislators from suit based on their legislative acts. This conclusion may be little solace to one who perceives himself to be the victim of abuse of power. But perhaps it emphasizes each citizen’s duty, for the public interest as well as one’s own, to seek the election of honest, capable leaders, or even run for office oneself.

Slip op. at 15. Thanks to Dean Patty Salkin's Law of the Land blog for bringing this decision to our attention.  Her summary of the case is here.