After the jump, two interesting immunity decisions from the Ninth Circuit. When you encourage your friends to take this class next spring, tell them to expect to see this case in arguments.
1) Recall Boquist v. Courtney in the Legislative Immunity puzzles of Chapter 5--the Oregon legislature limited a member's access to the chamber because of some allegedly threatening statements he had made in the press.
Sen. Boquist is back. He and another senator were sanctioned for excessive absences (both were part of a mass walkout by the Senate minority, intending to deprive the body of a quorum). Pursuant to a state constitutional amendment denying ballot access to legislators who accumulate unexcused absences, the secretary of state disqualifies both from appearing on the ballot for reelection. The court held that the legislative walkout constitutes a legislative act and thus cannot be the basis for a § 1983 action. The court distinguished Courtney (the case from our puzzle) because the walkout is more legislative than statements to the press.
Note the court's questionable approach to this case and to its understanding of Courtney. The court focuses on the legislative nature of the plaintiff's actions (the statement to the press, the walkout) rather than the legislative nature of the defendant's actions (limiting access to the floor, counting his absences, excluding him from the ballot). That difference explains the court's justification for the prior case--it looked to the plaintiff's non-legislative speech, rather than the legislature's legislative punishment.
If the proper focus is the defendant, it adds another layer to the current case. The Secretary of State barring someone from the ballot is obviously not a legislative act. But it relies on a legislative act (the recording of absences) and would require evidence of that legislative act or evidence questioning that legislative act; this would seem to be prohibited by a Brewster-type evidentiary bar.
2) Social workers failed to notify a woman about a dependency hearing over her minor child and made false statements about the reason for failing to provide notice. The court rejected absolute quasi-prosecutorial and qualified immunity. Failing to provide notice and lying about are not prosecutorial actions (defendants would have been protected had the suit challenged the decision to initiate the dependency proceeding). And it is clearly established (including based on Hardwick v. Cty. of Orange, discussed in the reading) that government officials cannot lie to courts.
