In 1995, Sable purchased a parcel of property immediately north of a City public-works facility that included a fenced-in strip of land that had been the south half of a City street. Sable’s position was that the strip belonged to him through his predecessor’s in title adverse possession. The City, however, insisted that the strip belonged to it, and its council unanimously voted to move the fence. Sable filed suit against the City and its council to quiet title, and received leave to amend his complaint to allege a conspiracy by the defendants and seek damages and ejectment. A few weeks afterwards, the council voted to condemn his entire parcel of land and acquire it through eminent domain. The transcript of this meeting had one councilor apparently indicating there was no public purpose, with another adding “It’s good to be King.” A state court, in the meantime, determined that Sable had ownership of the strip through adverse possession. The parties could not agree on price and ultimately, a court upheld the condemnation as having a public purpose (to meet the City’s ongoing water-treatment needs). Sable brought a Section 1983 action against the City and councilors, alleging, among other things, that the condemnation action was retaliation in violation of his First Amendment right to petition the government for redress, his due process rights, his equal protection rights, and his right of access to the courts under the Privileges and Immunities Clause. The councilors argued that absolute legislative immunity protected them, in their individual capacity, from suit, but the district court disagreed, and they appealed.

The Tenth Circuit, noting that the plaintiff’s allegations “create an ugly picture of the abuse of public power to achieve improper ends,” nonetheless reversed the denial of summary judgment based on absolute legislative immunity. 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). “That the councilors may have exercised [their] discretion on the basis of motives that were irrelevant to public purposes [did] not affect the councilors’ legislative immunity.” Further, the fact that the “land grab” was directed at just one person in the absence of a general policy did not detract from the immunity, as “[a]lmost every plaintiff will perceive the challenged conduct as a particular act directed at violating the plaintiff’s rights.” Sable’s remedy, such as it was, lay with the ballot box.

Sable v. Myers, 2009 WL 1100462 (C.A. 10^th Cir. Okla. 4/24/2009).

The opinion can be accessed at: http://ca10.washburnlaw.edu/cases/2009/04/07-6286.pdf

This abstract appears in the May 13, 2008 issue of IMLA News. For more information about IMLA, visit: www.imla.org