Reza v. Pearce et al

Filing 46

ORDER denying 35 defendant Pearce's Motion to Dismiss. Signed by Judge Frederick J Martone on 4/23/2012.(KAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Salvador Reza,
Plaintiff,

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vs.

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Russell Pearce,
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Defendant.
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CV 11-01170-PHX-FJM
ORDER

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The court has before it defendant Pearce's motion to dismiss (doc. 35), plaintiff's
response (doc. 40), and Pearce's reply (doc. 45).

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Plaintiff, a Mexican-American and vocal critic of former Arizona State Senate

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President Russell Pearce, attended a public hearing relating to a bill co-sponsored by Pearce

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on February 22, 2011. The hearing was held at the Arizona State Senate building. Although

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people voiced their support of or opposition to the bill by cheering and booing, plaintiff

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alleges that he was neither disruptive nor disorderly.

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Two days later, plaintiff entered the State Senate building. He had plans to meet

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privately with another state senator. Plaintiff was approached upon entry by two police

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officers (former defendants Trapp and Burton), who told him that "by order of Senate

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President Russell Pearce he was no longer allowed inside the Arizona State Senate building"

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due to "disorderly and disruptive behavior." Compl. at ¶ 11. Plaintiff was arrested for

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trespassing. He was not prosecuted.

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Officers Trapp and Burton were dismissed from this action on October 21, 2011 (doc.

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25). Plaintiff's § 1983 claims against Pearce remain. Plaintiff contends that Pearce banned

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plaintiff from entering the Senate building not due to disruptive behavior at the February 22,

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2011 hearing, but rather because of his public criticism of Pearce and because of his Mexican

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ancestry. Plaintiff seeks a declaratory judgment, injunctive relief, and damages.

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Pearce moves to dismiss, arguing that he is entitled to absolute legislative immunity.

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The Speech or Debate Clause of the United States Constitution "immunizes Congressmen

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from suits" for acts performed "in the sphere of legitimate legislative activity." Supreme

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Court of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 731-32, 100 S. Ct. 1967,

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1974 (1980) (citation omitted). The purpose of cloaking legislative acts with absolute

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immunity is to ensure that "the legislative function may be performed independently without

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fear of outside interference." Id. at 731, 100 S. Ct. at 1974. For similar reasons, "state

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legislators enjoy common-law immunity from liability for their legislative acts." Id. at 732,

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100 S. Ct. at 1974; see also Bogan v. Scott-Harris, 523 U.S. 44, 49, 118 S. Ct. 966, 970

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(1998) ("state and regional legislators are entitled to absolute immunity from liability under

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§ 1983 for their legislative activities").

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To determine whether an act is legislative, we must analyze the "nature of the act"

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rather than the actor's motive or intent. See Bogan, 523 U.S. at 54, 118 S. Ct. at 973. The

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Ninth Circuit considers four factors in deciding whether an act is legislative: "(1) whether

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the act involves ad hoc decisionmaking, or the formulation of policy; (2) whether the act

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applies to a few individuals, or to the public at large; (3) whether the act is formally

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legislative in character; and (4) whether it bears all the hallmarks of traditional legislation."

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Community House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 960 (9th Cir. 2010) (citation

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omitted).

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Pearce argues that the two-part test cited in Schultz v. Sundberg, rather than the

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factors reaffirmed in Community House, controls. In Schultz, the Ninth Circuit held that a

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legislator is entitled to absolute immunity for an act that is within the "legitimate legislative

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sphere" because it is "an integral part of the deliberative and communicative process by
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which members participate in committee and house proceedings" and it "address[es]

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proposed legislation or some other subject within" a legislature's jurisdiction. Schultz v.

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Sundberg, 759 F.2d 714, 717 (9th Cir. 1985). Pearce contends that the Schultz test provides

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absolute immunity for "certain actions that are not legislative in nature." Reply at 2. We

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disagree. Absolute legislative immunity is by definition only available for legislative acts.

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See Chateaubriand v. Gaspard, 97 F.3d 1218, 1220 (9th Cir. 1996) (absolute immunity does

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not extend to actions taken by legislators "in their administrative or executive capacities").

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The whole purpose of asking whether an act is within the legitimate legislative sphere is to

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determine whether that act is legislative. Moreover, Schultz was decided pre-Bogan, a

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decision which prompted a change in the determination of whether an act is legislative. See

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Bechard v. Rappold, 287 F.3d 827, 829 (9th Cir. 2002) ("in evaluating whether an act is

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legislative, we have been directed by the United States Supreme Court to look to whether the

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act is 'formally legislative[in] character' and whether it bears 'all the hallmarks of traditional

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legislation'") (citing Bogan, 523 U.S. at 55, 118 S.Ct. at 973).

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Applying the Community House factors, we conclude that Pearce's issuance of an

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order excluding plaintiff from the State Senate Building was not a legislative act. First, the

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decision was ad hoc in nature. An ad hoc decision is one made with a particular result in

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mind. Community House, 623 F.3d at 961. Decisions that are directed towards a specified

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individual "are normally considered to be ad hoc." Id. Pearce argues that the Senate rule

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requiring the Senate President to maintain order and decorum within the building authorized

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him to remove plaintiff. This rule is generic. A decision that plaintiff in particular was

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unruly and needed to be banned is one directed to a specific person and designed to

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accomplish a particular end. Pearce's order was not related to the creation or implementation

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of broader policy to promote decorum within the Senate building. It was plaintiff who was

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no longer permitted inside, not a particular kind of conduct. Second, Pearce's order applied

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to plaintiff alone. See Kaahumanu v. Cty. of Maui, 315 F.3d 1215, 1222 (9th Cir. 2003)

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("When the act in question applies to a few individuals rather than the public at large,

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legislative immunity is disfavored."). Third, the act was neither formally legislative nor
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legislative in character. It did not involve the proposal or passage of a bill, ordinance,

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resolution, rule, vote, or other formal legislative act. He was not, for example, ejected from

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a legislative hearing for conduct at that hearing. As such, Pearce's order bears none of the

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hallmarks of traditional legislation.

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Pearce maintains that he is entitled to immunity "because restricting [p]laintiff was

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pursuant to the Senate Rules to preserve and maintain decorum and order so that the Arizona

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State Senate can conduct its business." Reply at 3. An action is not legislative simply

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because it is authorized by a Senate rule. Accepting plaintiff's allegations as true, at the time

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of his arrest he was not attending a legislative hearing or legislative session. He was not on

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the Senate floor. Plaintiff does not allege that Pearce ordered him banned from the building

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during the February 22, 2011 hearing. Moreover, plaintiff was not merely banned from

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attending future legislative sessions or hearings, but "was no longer allowed inside the

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Arizona State Senate building." See Compl. at ¶ 11. Based on these facts, Pearce is not

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entitled to absolute legislative immunity.

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Finally, Pearce argues for the first time on reply that to the extent plaintiff asserts

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claims of false arrest and false imprisonment against him, these claims must be dismissed.

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We do not consider arguments raised for the first time in a reply. See Turtle Island

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Restoration Network v. U.S. Dept. of Commerce, 672 F.3d 1160, 1166 n.8 (9th Cir. 2012).

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Accordingly, IT IS ORDERED DENYING defendant Pearce's motion to dismiss

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(doc. 35).
DATED this 23rd day of April, 2012.

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