This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




Susan M. Green,



City of Coon Rapids, et al.,


Filed September 8, 1998


Norton, Judge*

Anoka County District Court

File No. C6-98-12181

Arlo H. Vande Vegte, 1850 W. Wayzata Blvd., P.O. Box 39, Long Lake, MN 55356 (for appellant)

James J. Thomson, Joe Y. Yang, Kennedy & Graven, Chartered, 470 Pillsbury Ctr., Minneapolis, MN 55402 (for respondents)

Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Norton, Judge.



Appellant Susan Green challenges the district court's summary judgment dismissing her 42 U.S.C. § 1983 claims against respondents, the mayor, and individual city council members of the City of Coon Rapids. Because the actions of respondents were protected from section 1983 claims by legislative immunity, we affirm.


Appellant was a member of the Coon Rapids City Council for 19 years. In November 1992, while still a city council member, she ran for election against an Anoka County Commissioner, Cenaiko. Although appellant won the election, Cenaiko challenged the result claiming appellant engaged in illegal campaign practices. To settle their dispute, appellant and Cenaiko agreed to reopen the commissioner's seat for election with Cenaiko choosing not to run. Appellant lost the second election. Appellant then ran for reelection for her city council seat but was defeated in the September 1993 primary.

In October 1993, the city council passed Resolution No. 93-104, removing appellant from her council seat two months before her term expired in December 1993. The council based its action on City Charter section 1-205(h), which states:

[A] vacancy in the membership of the Council shall be deemed to exist if a person elected thereto, without cause, fails to perform any of the duties of membership in the Council for a period of three months.

Appellant immediately filed a motion in district court seeking a temporary injunction. She later filed a complaint seeking declaratory and injunctive relief and damages under 42 U.S.C. § 1983 and mandamus relief under state law. Although the district court found that, during 1993, appellant missed 38 of 53 council meetings and workshops and found that appellant's reasons for her absences were not good cause, it enjoined respondents from enforcing Resolution No. 93-104, interpreting the charter provision to allow removal only if a council member participated in no council activities during a consecutive three-month period. Based on the court's ruling, the city paid appellant her salary and benefits for the two months remaining on her term. On April 5, 1995, the city council passed Resolution 95-44, rescinding Resolution 93-104. Based on respondents' motion, the district court entered summary judgment dismissing appellant's section 1983 claim for damages and ruling that her claims for non-monetary relief were moot.


Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. When reviewing a district court's grant of summary judgment, we determine whether any genuine issues of material fact exist and whether the lower court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). Evidence must be viewed in the light most favorable to the party against whom summary judgment was granted. Id. Nevertheless, a defendant is entitled to summary judgment when the record reflects a complete lack of proof on an essential element of a plaintiff's claim. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).

Appellant claims that the council's act of passing Resolution 93-104 to remove her from office was in retaliation for her exercise of First Amendment rights when she campaigned against Cenaiko, and this violation of her First Amendment rights supports her claim for section 1983 relief. She relies on evidence that council members supported Cenaiko and argues this circumstantial evidence creates an issue of material fact concerning the council members' motives when they passed the resolution.

Local legislators are entitled to absolute immunity from § 1983 liability for legislative activities. Bogan v. Scott-Harris, 118 S. Ct. 966, 972 (1998); Farrington v. City of Richfield, 488 N.W.2d 13, 16 (Minn. App. 1992). In Bogan, legislative immunity applied to a city council's act of passing an ordinance that eliminated the budget for the section 1983 claimant's department. That claimant argued that the council's action was not protected because it was directed at her personally and was in retaliation for her exercise of protected speech. 118 S. Ct. at 972. The Supreme Court held that the council members' act of voting on an ordinance was "quintessentially legislative." Id. at 973. It also held that the mayor's act of signing the ordinance, though done as a representative of the executive, was also a legislative act. Id.

Like the claimant in Bogan, appellant argues that the city council's act of passing Resolution 93-104 should not be protected because council members who voted for the resolution were retaliating against her and interfering with her right of protected speech. However, the determination of whether an act is legislative and therefore immune from liability:

turns on the nature of the act, rather than on the motive or intent of the official performing it. * * * [I]t simply is not consonant with our scheme of government for a court to inquire into the motives of legislators.

Id. (internal quotations omitted). "Stripped of considerations of intent and motive," respondents' acts of passing and signing Resolution 93-104 were legislative. See id. (eliminating funding for department was legislative act protected by immunity); see also Farrington, 488 N.W.2d at 16 (choosing who to appoint to fill city council vacancy was legislative act protected by immunity).

Appellant argues that the district court's later ruling, that the resolution exceeded the charter authority, removes the protection of immunity. Our focus, however, is on the nature of the act, not the motive or intent of the officials performing it. See Bogan, 118 S. Ct. at 972. Appellant's allegation that council members passed the resolution knowing it was illegal is relevant only to her claim that their motive in passing the legislation was to retaliate against her. Regardless of their motive, the council's act of passing the resolution was legislative and protected from section 1983 liability. The fact that a court later determined the resolution exceeded the city's charter authority simply stripped the resolution of its legal effect; it did not change the nature of the council's action in passing the resolution. See id. (nature of the act, not motive or intent, determines legislative immunity against section 1983 claims).

Appellant argues that, even if legislative immunity protects the council's act of passing resolution 93-104, she still has a triable claim based on harassment by council members and city staff who ostracized her in retaliation for her campaign against Cenaiko. However, to establish her section 1983 First Amendment claim based on acts of harassment, appellant would have to establish that the harassment was in retaliation for "the views she espoused as a candidate" and the harassment would "deter a person of ordinary firmness from th[e] exercise" of protected speech. Bart v. Telford, 677 F.2d 622, 624-625 (7th Cir. 1982); cf. Stone v. Badgerow, 511 N.W. 2d 747, 752 (Minn. App. 1994) (immunity barred 1983 claim based on free speech where claimant could not establish that state actors knew her political beliefs), review denied (Minn. Apr. 19, 1994). Appellant points to no evidence that supports either of these required elements. Accordingly, the district court properly dismissed appellant's harassment claim. See Lubbers, 539 N.W.2d at 401 (defendant entitled to summary judgment when record contains no proof of element essential to plaintiff's claim). Likewise, appellant fails to establish any basis for her equal protection claim. To the extent that she claims she was treated differently from other council members because she was singled out for retaliation for her political views, her claim is the same as her failed claim under the First Amendment. See Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 1870 (1989) (section 1983 claims must be based on specific constitutional right that was violated).

Finally, appellant argues that the district court erred when it ruled that her claims for injunctive and declaratory relief were moot. No harm stemming from the resolution exists to be remedied; appellant's city council term expired; she was paid and received all her benefits; and the resolution was rescinded. Nevertheless, appellant seeks a declaration that respondents acted unconstitutionally to establish precedent and prevent future misconduct. Courts decide only actual controversies; they do not issue advisory opinions or decide cases merely to establish precedent. In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989). Further, appellant failed to establish any section 1983 violation and therefore she has no claims for declaratory or injunctive relief.

Appellant's counsel submitted a 43-page brief that was less than double-spaced in violation of Minn. R. Civ. App. P. 132.01 that limits briefs to 50 pages and requires text be double-spaced. Counsel's failure to double-space text resulted in a brief that exceeded the 50-page limit had it been properly double-spaced. Sanctions will be assessed against counsel whose careless errors unnecessarily burden this court. Swenson v. City of Fifty Lakes, 439 N.W.2d 758, 759 (Minn. App. 1989). As a sanction for his violation of rule 132.01, appellant's counsel shall pay $100 to the Clerk of the Appellate Courts.


*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.