Lake Country Estates, Inc. v. Tahoe Regional Planning Agency

Mr. Justice Marshall,

dissenting in part.

The Court today extends absolute immunity to nonelected regional officials for their legislative acts. Because extension of such extraordinary protection is without support in either precedent or policy, I cannot join Part III of the Court’s opinion.

In Tenney v. Brandhove, 341 U. S. 367 (1951), this Court declined to construe 42 U. S. C. § 1983 as abrogating state legislators’ unqualified immunity from suits that arise out of their legislative activity. Underlying the decision in Tenney was a recognition of the unique status of the legislative privilege, maintained for several centuries at common law and enshrined in the Federal Constitution, Art. I, § 6, as well as in all but seven of the States’ constitutions. 341 U. S., at 372-375. Absent evidence of explicit congressional intent, *407the Court was unwilling to strip state legislators of a protection so long enjoyed when there remained power in the voters to “discourag[e] or corree[t]” abuses by their elected representatives. Id., at 378.

Neither of the premises on which Tenney rested can sustain today’s holding. Immunity for appointed regional officials is without common-law antecedents or state constitutional status. Even the Compact does not purport to confer immunity on TRPA officials, and neither California nor Nevada has claimed any such intent in the briefs filed in the instant case. More significantly, none of TRPA’s 10-member governing board is elected. Six are appointed by county and city governments in the area, two are appointed by the Governors of California and Nevada respectively, and two are members by virtue of their offices in state natural resource agencies. Compact, Art. Ill (a). Thus, no member of the board is directly accountable to the public for his legislative acts. To cloak these officials with absolute protection where control by the electorate is so attenuated subverts the very system of checks and balances that the doctrine of legislative privilege was designed to secure. Insulating appointed officials from liability, no matter how egregious their “legislative” misconduct, is unlikely to enhance the integrity of the decisional process. Nor will public support for the outcome of such processes be fostered by a scheme placing these decision-makers beyond constitutional constraints.

Equally troubling is the majority’s refusal to confront the logical implications of its analysis. To be sure, the Court expressly reserves the question whether individuals performing legislative functions at the local level should be afforded absolute immunity from federal damages claims. Ante, at 404 n. 26. But the majority’s reasoning in this case leaves little room to argue that municipal legislators stand on a different footing than their regional counterparts. Surely the Court’s supposition that the “cost and inconvenience and distractions *408of a trial” will impede officials in the “ 'uninhibited discharge of their legislative duty/ ” ante, at 405, quoting Tenney v. Brandhove, supra, at 377, applies with equal force whether the officials occupy local or regional positions. Moreover, the Court implies that the test for conferring unqualified immunity is purely functional. Ante, at 405 n. 30. If the sole inquiry under that test is the nature of the officials’ responsibilities, see ibid., not the common-law and constitutional underpinnings of the privilege itself or the wisdom of extending it to nonelected officials, then presumably any appointed member of a municipal government can claim absolute protection for his legislative acts.

A doctrine that denies redress for constitutional wrongs should, in my judgment, be narrowly confined to those contexts where history and public policy compel its acceptance. Today’s decision both expands the scope of immunity beyond such limits and lays the groundwork for further extension.

I respectfully dissent.