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King vs. Parliament:City Council Immunity from Civil and Criminal Liability

I.          INTRODUCTION / OVERVIEW.

            The principle of legislative immunity is long-established under both United States and Kansas constitutional authority.  This immunity is embedded in the United States Constitution, and is derived from ancient principles in Anglo-American jurisprudence.  The doctrine of legislative immunity, unlike other forms of official immunity, provides an extraordinary immunity from criminal prosecution and civil liability arising from a legislative act.  Additionally, that same immunity also protects legislators from being subpoenaed or questioned in court about those legislative acts.  This immunity from prosecution and from subpoena extends to members of a municipal governing body, as the legislative branch of government in a city.  The purpose of this article is to explore the historical and constitutional bases for this immunity, as extended to members of a city council or members of a municipal governing body, and to discuss the application and limits of the doctrine in a practical setting. 

II.        HISTORY OF THE SPEECH OR DEBATE CLAUSE.

            A.        ENGLISH LAW.

            1.         Strode’s Act (1512).

            From the founding of the three separate branches of government in England, there was tension between the executive branch (the King) and the legislative branch (Parliament). [2]  Over time, a number of English kings sent members of Parliament to prison for proposing or supporting bills the kings found to be unhelpful, or for raising issues and questions embarrassing to those kings or their families.

            The tension between Crown and Parliament had been brewing for centuries.  Back in 1512, one legislator, Richard Strode (himself a tinner by trade), had the temerity to speak out in Parliament against conditions in the tinning industry – for which he was fined 160 pounds and thrown into prison for three weeks. [3]  Upon his return to the next session of Parliament, Strode introduced a bill holding as null and void any proceeding against himself or any other present or future member of Parliament for any speeches or actions in legislative session, and the bill was adopted. [4]  While initially called “Strode’s Act,” it is more officially known as the “Privilege of Parliament Act.” [5]   

            The Act applied not only to Strode, but to “every other of the person or persons afore specified, that nowe be of this present parliament or that of any Parliament herafter,” and exempted them all from any accusations, charges, executions, grievances or impositions, “for any bill spekyng[,] reasonyng or declaryng of any mater or maters concernyng the parliament.” [6]  Strode’s Act was later superseded by the Privilege of Parliament Act of 1603, [7] which contained essentially the same provision. 

            2.         Sir John Eliot (1632).

            Obviously, Strode’s Act and the Privilege of Parliament Act proved ineffective to stave off royal (executive) efforts to chill debate in Parliament.  For example, in 1629, during the reign of Charles I, legislator Sir John Eliot was thrown into the Tower of London (a third time) along with eight others, for speaking out against the excesses of the Crown.  While there, Eliot wrote eight books on politics and ethics, continuing to speak out on the independence of Parliament and its right to criticize the King. [8] 

            Eliot was vocal, not only in his criticism of Charles I, but also on his insistence that Parliament be made free from royal interference. [9]  He wrote and spoke often on the need for independence, and for the deliberations of the House of Commons to be kept strictly secret. [10]

            But Eliot died from tuberculosis or consumption in 1632, while imprisoned in the Tower, thus ceasing to trouble King Charles any further. [11] 

            3.         The Glorious Revolution (1688). 

            Charles I was not King himself much longer, though, due to the Civil War which resulted from his excesses.  After the execution of Charles I at the end of the Civil War in 1649, his sons, Charles and James were living in France.  Eventually, the elder son Charles was invited to return to his homeland, taking the throne as Charles II in 1660.  His reign was cut short by his untimely death in 1685. [12]  Charles II he was then replaced by his brother, James II (also called James VII of Scotland). [13] 

            The rule of James II was not without its controversy, political, religious, and personal.  Ostensibly because of James’ personal life and his choice of Catholicism, the “Glorious Revolution of 1688” deposed James, and replaced him with his daughter, Mary (who had been raised in the Anglican Church), and Mary’s husband, William of Orange. [14] 

            4.         The English Bill of Rights (1689).

                Though royal interference in legislative affairs was not a primary cause of the Glorious Revolution, one of that Revolution’s salutary results was the English Bill of Rights. 

                That document lists some thirteen grievances against James II for acts which were “utterly and directly contrary to the known laws and statutes and freedom of this realm.”  The Bill then declares thirteen fundamental rights “for the vindicating and asserting their ancient rights and liberties.”  Among those was the speech or debate clause derived from Strode’s Act:  

    That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. [15] 

                As noted centuries later by the United States Supreme Court, the simplicity of this language belies the significance of its history.

    This formulation of 1689 was the culmination of a long struggle for parliamentary supremacy.  Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. [16]  

                Thus, by the time of the American Revolution, the concept of the independence of Parliament from the King was well-established in the written law, if not perhaps in the actual historic practice in the relationship between the executive and legislative branches of British Government.

                B.        UNITED STATES CONSTITUTION.

                1.         Articles of Confederation (1781).

    After the founding of this Nation, the Articles of Confederation adopted the protection of legislative speech nearly verbatim from the English Bill of Rights, by providing that

    Freedom of speech and debate in congress shall not be impeached or questioned in any court or place out of congress. . . . [17] 

                2.         The Constitution (1789).

                The Framers then included a similar clause in Article I, Section 6 of the United States Constitution, more broadly providing that members of Congress

    shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. [18]  

                The United States Supreme Court has aptly summed up the essential purpose of the Speech and Debate Clause, stating that legislators must be “immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good.” [19]  And the source and foundation for the Clause is the English Bill of Rights.

    The Speech or Debate Clause, adopted by the Constitutional Convention without debate or opposition, finds its roots in the conflict between Parliament and the Crown culminating in the Glorious Revolution of 1688 and the English Bill of Rights of 1689. [20] 
     

                C.        KANSAS CONSTITUTION.

                Like the United States Constitution, the Kansas Constitution also protects legislative speech and debate.  Article 2, § 22 of the Kansas Constitution provides:

    Legislative immunity.  For any speech, written document or debate in either house, the members shall not be questioned elsewhere.  No member of the legislature shall be subject to arrest — except for treason, felony or breach of peace — in going to, or returning from, the place of meeting, or during the continuance of the session; neither shall he be subject to the service of any civil process during the session, nor for fifteen days previous to its commencement. [21] 

                Like the United States Supreme Court, the Kansas Supreme Court also holds that this constitutional provision shields legislative acts or acts falling into the category of a legitimate legislative act under the Speech or Debate Clause from use in a criminal trial.  The Kansas Supreme Court has reasoned

    that the purpose of the Speech or Debate Clause is to insure that legislators may perform legislative functions independently, free from outside interference or fear of such interference.  To preserve legislative independence, legislators ‘should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves. [22]
     

    III.       UNITED STATES SUPREME COURT PRECEDENT.

                The United States Supreme Court has consistently applied the Speech or Debate Clause to provide legislators with absolute immunity from from criminal or civil liability for the purely legislative acts they perform. [23]  “Absolute” means that, unlike other types of governmental immunity, legislative immunity cannot involve the application of a balancing test such that the interests of the government are played against the interests of the public. [24]

                In Bogan v. Scott–Harris, [25] for example, the United States Supreme Court held that local legislators are absolutely immune from suit for their legislative activities.  Local legislative acts in voting for an ordinance are “in form, quintessentially legislative,” [26] and are therefore entitled to legislative immunity.

                The rationale for immunity from criminal liability stems from an even more fundamental purpose of the doctrine of legislative immunity, going all the way back to Strode’s Act and the Privilege of Parliament Act: to preserve the independence of the legislature as a coequal branch of the government, free from executive or judicial intimidation or control. [27]  

    Our cases make it clear that the legislative immunity created by the Speech or Debate Clause performs an important function in representative government. It insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation. [28] 

                With the power to institute and prosecute criminal proceedings, the executive branch has a unique power to intimidate by threats of criminal prosecution members of the legislature whose political views or actions might displease the executive or judicial branches. [29]  Thus, freedom from untrammeled application of that power is important to preserve the independence of the legislature and the separation of the branches of government. [30]

                Immunity from criminal liability for legislative acts is not designed for a legislator’s personal or private benefit, but rather to protect the integrity of the legislative process by ensuring the independence of individual legislators.  As the Court stated in Gravel v. United States: [31]

    Thus, voting by Members and committee reports are protected; and we recognize today — as the Court has recognized before, Kilbourn v. Thompson, 103 U.S., at 204; Tenney v. Brandhove, 341 U.S. 367, 377-378, 71 S.Ct. 783, 788-789, 95 L.Ed. 1019 (1951) — that a Member’s conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, may not be made the basiss for a civil or criminal judgment against a Member because that conduct is within the ‘sphere of legitimate legislative activity.’  (Emphasis added.)  

                A personal privilege may be asserted by a state legislator to shield evidence of legislative acts from serving as a basis for criminal liability.  This privilege of nonevidentiary use arising under Federal Rule of Evidence 501 applies in both criminal and civil proceedings. [32]  Thus, legislators are protected against being required to testify about their legislative acts, as well as being protected against being prosecuted, criminally or civilly, for those acts.

    IV.       TENTH CIRCUIT PRECEDENT.

                The Tenth Circuit United States Court of Appeals [33] has routinely followed the Supreme Court’s broad view of legislative immunity.  In Fry v. Board of County Commissioners, [34] the Tenth Circuit granted immunity to board members of a county commission with respect to a decision to vacate roadways.  The Frys wanted to establish a road along section lines to link two different tracts of their land. [35]  When the board denied the request, the Frys brought suit in state court, claiming that a 1911 commission resolution had already designated all section lines as county roads. [36]  The state court agreed and ordered the removal of all fences that interfered with travel on the road desired by the Frys. [37]  Allegedly prodded by landowners who were angry at the Frys, the board approved a resolution vacating about 3 1/2 miles of section-line roads in the county, including the route of the Frys’ road.  The Frys then sued the county commissioners under § 1983, alleging that the board’s action was in violation of various constitutional rights. [38] Following Tenney v. Brandhove, supra, the 10th Circuit held that the board members enjoyed legislative immunity. [39]  

    V.        KANSAS SUPREME COURT PRECEDENT. 

                The Kansas Supreme Court has also been consistent in its application of the Speech or Debate Clause to local and municipal legislators.  In State ex rel. Stephan v. Kansas House of Representatives, [40] the Kansas Attorney General brought suit against the legislature, in part to challenge the legislature’s adoption of a statute which would allow the adoption of regulations without approval of the Governor and to challenge the legislature’s actions taken pursuant to that statute. [41]  In dismissing the suit against the legislature, the Court reviewed, and applied, the protections afforded by the Speech or Debate Clause in the United States Constitution and the Kansas Constitution, as well as in the common law.

    In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), it was recognized that state legislators enjoy common-law immunity that is similar in origin and rationale to that accorded congressmen under the federal Speech or Debate Clause.  Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 732, 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641 (1980).  The Supreme Court has also stated in dicta that the state legislative privilege is on a parity with the similar federal privilege under the Speech or Debate Clause.  See United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966);Supreme Court of Va. v. Consumers Union, 446 U.S. at 733, 100 S.Ct. at 1975. . . . As stated by the court in Star Distributors, Ltd. v. Marino, 613 F.2d 4, 8 (2nd Cir.1980), “[t]he shared origins and justifications of [state legislative immunity and immunity under the federal Speech or Debate Clause] would render it inappropriate for us to differentiate the scope of the two [doctrines] without good reason.” In this state the common-law immunity for state legislators is embodied in art. 2, § 22 of our state constitution and no reason presents itself for not according the state legislature the same immunity which protects our federal Congress. [42] 

                The Stephan Court went on to quote another U. S. Supreme Court case:

    ‘[T]he “central role” of the Clause is to “prevent intimidation of legislators by the Executive and accountability before a possible hostile judiciary.” [As such,] the Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch.’ [43] 

                This legislative immunity was not established for the purpose of protecting the private or personal benefits of legislators.  Rather, immunity is provided to “protect the integrity of the legislative process by insuring the independence of individual legislators.” [44] Further, legislative immunity was developed to reinforce the carefully established separation of powers doctrine.  

                The Speech or Debate Clause is to be read broadly to carry out these purposes. [45]

                Kansas law tracks, and provides protection equal to, federal immunity for legislative decisions and votes:

    The state common-law doctrine of legislative immunity and Article 2, § 22 of the Kansas Constitution provide protection to Kansas legislators equivalent to the protection provided to federal legislators under Article I, § 6 of the United States Constitution because they are based on the same origin and rationale. [46] 

                Thus, it is this constitutional and common law immunity which protects the members of a legislative body from criminal or civil prosecution for legislative acts.

    VI.       LEGISLATIVE IMMUNITY EXTENDS TO MEMBERS OF A CITY COUNCIL.

                Legislative action by City Council members is protected by absolute immunity.  In Edgington v. City of Overland Park, [47] the Kansas Court of Appeals expressly held that:

                Defendants are clothed with absolute immunity for their actions if voting to reject plaintiff’s nomination was a legislative, as opposed to an administrative, act. [48]

                This principle resonates with a similar holding by the United States Supreme Court, that “Absolute legislative immunity attaches to all actions taken in the sphere of legitimate legislative activity.” [49]  

                In Sable v. Myers, supra, the Tenth Circuit Court of Appeals described a legal and practical basis for absolute immunity.

    Legislative immunity enables officials to serve the public without fear of personal liability.  Not only may the risk of liability deter an official from proper action, but the litigation itself creates a distraction and forces legislators to divert their time, energy, and attention from their legislative tasks to defend the litigation.  Supreme Court of Va. [v. Consumers Union of the United States, 446 US 719] at 733, [100 S. Ct. 1967, 64 L. Ed. 2d 641 (1980)] (brackets and internal quotation marks omitted).  Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public . . . As explained in Tenney, “The privilege would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial [**9] upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives.”  [Tenney v. Brandhove,] 341 US [367,] at 377 [, 71 S. Ct. 783, 95 L. Ed. 1019 (1951)]. [50] 

                Thus, immunity is not limited to members of Congress and state legislators, but extends to local-government legislators. [51]  

                Mayors and city council members are entitled to absolute legislative immunity in their individual capacities for any policy that they enacted in their legislative capacity. [52]  

    VII.     IMMUNITY APPLIES TO VOTES TAKEN BY CITY COUNCIL MEMBERS.

                Even though the Supreme Court originally extended immunity to any actions taken by a legislature, the breadth of that interpretation has been narrowed over time.  In Kilbourn v. Thompson – the first case brought to the Court for consideration under the Clause — the Supreme Court gave this clause its broadest interpretation, defining protected actions as “things generally done in a session of [Congress] by one of its members in relation to the business before it.” [53]  As noted above, the immunity provided by the common law through the Speech or Debate Clause is not so broad; it now extends to legislative actions taken by a governing body, though not to “administrative” actions. 

    Not all actions taken at a legislative meeting by a local legislator are legislative for purposes of immunity.  See Roberson v. Mullins, 29 F.3d 132, 134 (4th Cir. 1994); accord Brown v. Griesenauer, 970 F.2d 431, 437 (8th Cir. 1992) (holding that impeachment proceedings are essentially judicial or adjudicatory in nature despite legislative decision-making body and form of proceedings); Hansen [v. Bennett,] 948 F.2d [397,] 402 03 [(7th Cir. 1991), cert. denied, 504 U.S. 910 (1992)] (holding that mayor was not acting in a legislative capacity when he restored order and regulated discussions at a public meeting); Cinevision [Corp. v. City of Burbank,] 745 F.2d [560,] at 580 [(9th Cir. 1984)] (holding that city councilperson’s vote to disapprove plaintiff’s proposed concerts at city amphitheater was an executive, not a legislative act); Detz v. Hoover, 539 F. Supp. 532, 534 (E.D. Pa. 1982) (holding that a municipality’s employment decisions are “essentially administrative in nature” (emphasis omitted)).  Nor does voting on an issue, in and of itself, determine that the act is legislative in nature. See Smith v. Lomax, 45 F.3d 402, 406 (11th Cir. 1995); Roberson [v. Mullins], 29 F.3d 132,] at 134 [(4th Cir. 1994)], n.3; Cinevision, 745 F.2d at 580. “Whether actions . . . are, in law and fact, an exercise of legislative power depends not on their form but upon `whether they contain matter which is properly to be regarded as legislative in its character and effect.'”  INS v. Chada, 462 U.S. 919, 952 (1983) (citation omitted); accord Roberson, 29 F.3d at 135; Chicago Miracle Temple Church, Inc. v. Fox , 901 F. Supp. 1333, 1343-44 (N.D. Ill. 1995). [54]  

                In Kamplain v. Curry County Bd. of Commissioners, the Tenth Circuit Court of Appeals reviewed a county commission’s vote to exclude a particular individual from a meeting and a vote to ban plaintiff from all future meetings. [55]  The court held that decision was not legislative in nature, and thus not suitable to clothe the commissioners with immunity, “[b]ecause the circumstances of this case did not concern the enactment or promulgation of public policy.” [56] 

                If the challenged legislative decision was not “ministerial,” it is immune under the Speech or Debate Clause.

    Even the authorities cited by respondent are consistent with the view that local legislators were absolutely immune for their legislative, as distinct from ministerial, duties.  In the few cases in which liability did attach, the courts emphasized that the defendant officials lacked discretion, and the duties were thus ministerial.  See, e. g., Morris v. The People, 3 Denio 381, 395 (N. Y. 1846) (noting that the duty was “of a ministerial character only”); Caswell v. Allen, 7 Johns. 63, 68 (N. Y. 1810) (holding supervisors liable because the act was “mandatory” and “[n]o discretion appear[ed] to [have been] given to the supervisors”). Respondent’s heavy reliance on our decision in Amy v. Supervisors, 11 Wall. 136(1871), is misguided for this very reason. In that case, we held that local legislators could be held liable for violating a court order to levy a tax sufficient to pay a judgment, but only because the court order had created a ministerial duty. Id., at 138 (“The rule is well settled, that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct”).  The treatises cited by respondent confirm that this distinction between legislative and ministerial duties was dispositive of the right to absolute immunity.  See, e. g., Cooley 377 (stating that local legislators may be held liable only for their “ministerial” duties); Mechem § 647 (same). [57] 

                Legislators’ separation of powers immunity for legislative acts protected by the Speech or Debate Clause extends to criminal prosecutions, and not just to civil suits. [58] Thus, in D’Amato v. Superior Court, the California Court of Appeals held that a City administrator’s alleged act of minimizing the real cost of a project to lower rail grades at street crossings in budget reports and communications with city council was within legislative immunity, and thus could not form a basis for criminal liability for aiding and abetting public works director’s alleged offense of having a personal interest in the rail contract, even though the city administrator adopted overly optimistic projections of potential government reimbursements, absent evidence that city administrator stepped outside his customary role in the city council’s budgetary process. [59] 

    VIII.    IMMUNITY EXTENDS TO PROTECTION AGAINST COMPELLED TESTIMONY. 

                The Speech or Debate Clause grants not only substantive immunity to a legislator from civil and criminal liability arising out of legislative acts and the motivation for those acts, but also an evidentiary privilege against use of such acts or motive.

                Legislative immunity protects those “engaged in legitimate legislative activity … not only from the consequences of litigation’s result but also from the burden of defending themselves.” [60]  For example in Kay v. City of Rancho Palos Verdes, [61] the Court found “a limited legislative privilege [exists] against supplying evidence, . . . lest lawmakers similarly fear that they [will] be subjected to the burdens of answering subpoenas and testifying about their legislative work.” [62]  And in 2BD Assocs. Ltd. P’ship v. County Comm’rs, [63] legislative immunity was held to have the two-fold effect of “protecting legislators from civil suit and [functioning] as an evidentiary and testimonial privilege”. [64]

                Where the Speech or Debate Clause applies, it “shields legislators from lawsuits relating to legitimate legislative activities, as well as from being compelled to testify or provide other discovery in lawsuits brought by or against third parties.” [65]  In Williams v. Johnson, [66] a city council member was held to be absolutely immune from a subpoena to testify on a legislative enactment by the city council.  Similarly, in a number of cases, subpoenas served on city council members and other legislators have been quashed. [67]   Furthermore, because legislative immunity not only prohibits compelled testimony, but also prohibits the compelled production of documents, documents requested pursuant to a subpoena duces tecum should also be protected against a subpoena. [68] 

    IX.       CONCLUSION. 

                Legislators – including members of a municipal governing body – generally do not seek special privileges.  Indeed, they serve tirelessly for the benefit of the citizens who elected them.  But when the legislative actions taken by a city council are called into question, the Speech or Debate Clause of the United States Constitution and the Kansas Constitution – together with a body of common law developed over centuries finding its roots in Strode’s Act and the Protection of Parliament Act – serve to protect city council members from criminal prosecution and civil liability for legislative acts undertaken as a member of the council, as well as immunity from being subpoenaed or otherwise forced to testify about such legislative acts. 

    [2] See Tenney v. Brandhove, 341 U.S. 367, 372, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).
    [3] http://www.historyofparliamentonline.org/volume/1509-1558/member/strode-richard-i
    [4] Id. 
    [5] http://www.legislation.gov.uk/aep/Hen8/4/8/contents.  The Act is cited officially as 1512 c. 8 (Regnal. 4_Hen_8). 
    [6] http://www.legislation.gov.uk/aep/Hen8/4/8/section/II
    [7]http://www.legislation.gov.uk/aep/Ja1/1/13/introduction.  This Act is cited as 1603 c. 13 (Regnal. 1_Ja_1). 
    [8]http://universalium.academic.ru/266618/Eliot,_Sir_John
    [9] http://en.wikisource.org/wiki/Speech_on_the_Petition_of_Right 
    [10] http://www.1902encyclopedia.com/E/ELI/sir-john-eliot.html 
    [11]http://www.royal.gov.uk/historyofthemonarchy/kingsandqueensoftheunitedkingdom/thestuarts/charlesi.aspx 
    [12] http://www.luminarium.org/encyclopedia/charles2.htm 
    [13] http://www.bbc.co.uk/history/historic_figures/james_ii.shtml 
    [14]http://www.britroyals.com/kings.asp?id=william3 
    [15] http://www.constitution.org/eng/eng_bor.htm 
    [16] United States v. Johnson, 383 U.S. 169, 178 (1966), citing C. Wittke, The History of English Parliamentary Privilege (Ohio State Univ. 1921); Neale, The Commons’ Privilege of Free Speech in Parliament, in Tudor Studies (Seton-Watson ed. 1924). 
    [17] Articles of Confederation and Perpetual Union, Article V (1781). 
    [18] United States Constitution, Article. I, Section 6, clause 1 (1789). 
    [19] Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). 
    [20]Powell v. McCormack, 395 U.S. 486, 502 (1969). 
    [21] Kansas Constitution, Article 2, Section 22. 
    [22] State v. Neufeld, 926 P. 2d 1325, 1332, 260 Kan. 930 (1996), citing State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 54-55, 687 P.2d 622 (1984) (quoting Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 731-32, 100 S.Ct. 1967, 1974-75, 64 L.Ed.2d 641 [1980] ).  
    [23]See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503, 95 S.Ct. 1813, 1821, 44 L.Ed.2d 324 (1975).  
    [24] Id
    [25] Bogan v. Scott–Harris, 523 U.S. 44, 118 S.Ct. 966, 970, 140 L.Ed.2d 79 (1998), 
    [26] 118 S.Ct. at 973. 
    [27]Gravel v. U. S., 408 U.S. 606, 624, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). 
    [28] Powell v. McCormack, 395 U.S. 486, 503 (1969). 
    [29] See Tenney v. Brandhove, 341 U.S. 367, 372, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)(state legislators); Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 405, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979)(regional legislators). 
    [30] Id
    [31] Gravel v. United States, 408 U.S. 606, 616 (1972). 
    [32] In re Grand Jury Proceedings (Cianfrani), 563 F.2d 577, 580-81 (3rd Cir. 1977).  
    [33] The Tenth Circuit includes the State of Kansas, and that Court’s precedents are applied in the federal court sitting in this State. 
    [34] Fry v. Board of County Commissioners of County of Baca, 7 F.3d 936 (10th Cir.1993). 
    [35] Id., at 938.  
    [36] Id., at 938-39.  
    [37] Id., at 939-40.  
    [38]See Id., at 937.  
    [39] Id. at 942. 
    [40]State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 687 P.2d 622 (1984). 
    [41] Id., at 46.  
    [42] Id., at 54. 
    [43] 236 Kan. at 56, 687 P.2d 622 (citing Eastland v. United States Servicemen’s Fund, 421 US 491, 421, 95 S. Ct. 1813, 1820-21, 44 L. Ed. 2d 324 (1975)).
    [44] Stephan, 236 Kan. at 55, 687 P.2d 622 (quoting United States v. Brewster, 408 US 501, 92 S.Ct. at 2535 (1972)).   
    [45] Stephan, 236 Kan. at 56, 687 P.2d 622 (citing Eastland, 421 U.S. at 501, 95 S.Ct. at 1820, and Johnson, 383 U.S. at 180, 86 S.Ct. at 755). 
    [46] State v. Neufeld, 260 Kan. 930, 939, 926 P. 2d 1325, 1332, (1996); State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 54, 687 P.2d 622 (1984). 
    [47] Edgington v. City of Overland Park, 15 Kan.App.2d 721, 733, 815 P.2d 1116 (1991). 
    [48]See also, Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979); Sable v. Myers, 563 F.3d 1120, 1123  (10th Cir. 2009)(reversing denial of summary judgment and remanding with direction to grant summary judgment in favor of city council member defendants).   
    [49] Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (internal quotation marks omitted). 
    [50] Sable v. Myers, 563 F.3d at 1123 – 24. 
    [51] See Bogan, supra, at 49, 118 S.Ct. 966; see also Supreme Court of Va. v. Consumers Union of U.S., Inc., supra, 446 U.S. 719, 734, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) (recognizing immunity for state judges acting in legislative capacity). 
    [52] Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 688 F.Supp. 1522 (S.D.Fla., 1988)(City councilmen and mayor were entitled to absolute legislative immunity in their individual capacities for proposing three criminal ordinances relating to ritual sacrifice of animals, regardless of whether ordinances were constitutional. 
    [53] Kilbourn v. Thompson, 103 U.S. (13 Otto) 168, 204, 26 L. Ed. 377 (1880). 
    [54]Kamplain v. Curry County Bd. of Com’rs, 159 F.3d 1248, 1252 (10th Cir. 1998 
    [55]159 F.3d at 1250.  
    [56] Id. at 1252.  
    [57] Bogan v. Scott-Harris, 523 U.S. 44, 51-2, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). 
    [58]D’Amato v. Superior Court, 167 Cal.App.4th 861, 84 Cal.Rptr.3d 497, 08 Cal. Daily Op. Serv. 13,407, 2008 Daily Journal D.A.R. 15,983 (Cal. App. 2008). 
    [59] Id. 
    [60] Supreme Court of Va. v. Consumers Union of the U.S., 446 U.S. 719, 731-32, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980).  
    [61] Kay v. City of Rancho Palos Verdes, 2003 WL 25294710, at *9, 2003 U.S. Dist. LEXIS 27311, at *26-27 (C.D.Cal. Oct. 10, 2003). 
    [62] Id. 
    [63] 2BD Assocs. Ltd. P’ship v. County Comm’rs, 896 F.Supp. 528, 531 (D.Md. 1995). 
    [64] Id
    [65] Alliance for Global Justice v. District of Columbia, 437 F.Supp.2d 32, 35-36 (D.D.C. 2006). 
    [66] Williams v. Johnson, 597 F.Supp.2d 107, 117 (D.D.C. 2009). 
    [67] In re Grand Jury Subpoena, 626 F.Supp. 1319 (M.D. Pa. 1986)(quashing grand jury subpoenas served on legislators); Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 507, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); MINPECO v. Conticommodity Servs., 844 F.2d 856, 861 (D.C. Cir. 1988).   
    [68] MINPECO, 844 F.2d at 859; Maddox v. Williams, 855 F.Supp. 406, 412-13 (D.D.C. 1994).