Opinion
No. CIV 08-753 MV/RHS.
May 15, 2009
Attorney for Plaintiffs: J. Robert Beauvais, Ruidoso, New Mexico.
Attorneys for Defendants: Kelly Mack Cassels, Ian D. McKelvy, Octavio L. Sanchez, Roswell, NM.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Individual Defendants' (Mel Long, Dick Dysart and Glenda Gentry) Motion to Dismiss (Doc. No. 5, filed October 10, 2008). For the reasons stated below, the Court will GRANT the Motion.
Plaintiffs are qualified electors and property owners within the Timberon Water and Sanitation District ("Timberon"). (Complaint ¶ 4, Doc. No. 1, filed August 15, 2008). Defendants Long, Dysart and Gentry ("Individual Defendants") are elected directors of Timberon. ( Id. ¶ 4). Plaintiffs allege that the Individual Defendants violated their civil rights by "intentionally set[ting] up voter eligibility requirements for non resident qualified electors to vote by absentee ballot which are considerably more restrictive than absentee voting for residents." ( Id. ¶ 8).
The Individual Defendants seek an order dismissing Plaintiffs' Complaint against them in their individual capacity with prejudice on the ground that they are entitled to legislative immunity. (Motion at 1; Memorandum in Support 2-6, Doc. No. 7, filed October 10, 2008).
"Local legislators are entitled to absolute immunity from § 1983 liability for their legislative activities." Kamplain v. Curry County Bd. Of Comm'rs, 159 F.3d 1248, 1250 (10th Cir. 1998). Legislative immunity "extends to legislators only when they are acting in the sphere of legitimate legislative activity." Id. at 1251. Legislators are not entitled to absolute legislative immunity when they act in an administrative capacity. Id. at 1252.
Plaintiffs argue that the Individual Defendants "did not vote to adopt an election procedure required by an interpretation of state law or to act in a statutory manner. Rather, [they] set a procedure for voting which was administrative in nature and not subject to a claim of legislative immunity." (Response at 6, Doc. No. 8, filed October 27, 2008). Plaintiffs do not cite any authority for the proposition that setting voting procedures is administrative and not legislative.
"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." Kamplain, 159 F.3d at 1251 ( citing 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.")). Administrative acts, however, do not concern the enactment or promulgation of public policy. See id. (awarding bids and purchasing county property whereby the Board of County Commissioners applied known rules and legislation to make an administrative business decision is essentially an administrative or executive function).
Plaintiffs complain that the Individual Defendants set unreasonable voter eligibility requirements thereby violating their constitutional rights. Those requirements are new rules of conduct that changed the existing voting procedure and apply thereafter to non-resident qualified electors that wish to vote by absentee ballot. The Court concludes that the setting of the voting procedures by the Individual Defendants was a legislative act. Defendants Mel Long, Dick Dysart and Glenda Gentry are entitled to legislative immunity from § 1983 liability for their legislative activities.