Miles v. New Shoreham

• Court: District Court, D. New Hampshire
• Decided: February 14, 1996
• Docket: CV-95-356-JM
• Status: Published

Opinion

Miles v. New Shoreham CV-95-356-JM 02/14/96 P

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Miles-Un-Ltd., Inc., Aides Mopeds, Inc., Finnimore & Fisher, Inc., Ocean State Bikes, Inc. and M & J Transportation, Inc. and The Moped Man, Inc. NH Civil No. 95-356-JM v. RI Civil No. 95-CV-326B RI Civil No. 95-456-ML Town of New Shoreham, RI, Mary Jane Balser, Edward F. McGovern, Jr., Kimberly Gaffett, Anthony Edwards, Martha Ball, Everett Littlefield, Douglas H. Michel and Susan Shea

O R D E R

This constitutional attack on the New Shoreham moped

ordinance is before the court on Plaintiffs' Motion to Compel

Deposition Testimony of Town Council Members and Defendants'

Opposition. For the reasons set forth below, the motion is

granted in part and denied in part.

BACKGROUND

The Town of New Shoreham is a municipal corporation located

on Block Island, an island of approximately ten square miles

situated some twelve miles off the mainland coast of Rhode

Island. Block Island has a year-round population of roughly 800

inhabitants. However, the island's population increases in the summertime in light of the fact that it is a popular vacation

destination.

In October, 1994, the Town Council of New Shoreham held a

public hearing regarding a proposed amendment to a then existing

ordinance. The then existing ordinance, called "Motorized Cycle

Rental", prohibited commercial moped rentals to the public

without a town license, limited the number of licenses available,

and limited the number of mopeds each licensee could rent to

fifty (50). New Shoreham Code of Ordinances, Article V, Section

8-87. The proposed amendment sought the reduction of the number

of mopeds each licensee could rent from fifty to forty during the

1995 season. Further, the proposed amendment reduced the number

of rentable mopeds from forty to thirty for the 1996 and

subseguent seasons. The Town of New Shoreham's authority to

enact the proposed amendment was based upon Rhode Island General

Laws § 31-19.3-5, which states in relevant part:

The Town Council of the Town of New Shoreham may enact reasonable ordinances establishing procedures and standards for the licensing, supervision, regulation and control of the rental of motorized bicycles and motorized tricycles. An ordinance enacted pursuant to this section may: •k -k -k

(d) establish a maximum number of motorized bicycles and or motorized tricycles which a license holder may rent or lease under said license.

According to defendants, the need for the amendment was

2 supported by graphic and compelling evidence. This evidence,

which was presented during the course of the public hearing,

related the dangers to public health and safety caused by

operation of mopeds on the island. Also presented at the

hearings was evidence pertaining to the degree to which moped

accidents overburden the island's limited medical resources. At

the conclusion of the public hearing, the Town Council for New

Shoreham voted to adopt the proposed amendment. The amended

ordinance took effect on October 24, 1994.

Following the enactment of the amended ordinance, the

plaintiffs filed an action seeking injunctive relief,

compensatory and punitive damages, and a declaratory judgment

declaring Ordinance 8-87, as amended, void as violative of

constitutional rights and Rhode Island law. Plaintiffs

particularly allege that the enactment of the amended ordinance

(1) constitutes an unlawful taking without just compensation in

violation of the Fifth and Fourteenth Amendments of the United

States Constitution; (2) violates the Commerce Clause of the

United States Constitution; (3) violates Egual Protection and Due

Process rights afforded by the United States Constitution; and

(4) intentionally interferes with contractual relations.

Plaintiffs, on December 22, 1995, served Deposition Notices

on defendants, noticing the deposition of Town Council members.

3 Upon receipt of these notices, counsel for defendants notified

plaintiffs' counsel that he intended to instruct the deponents

(Town Council members) not to answer questions regarding the

"legislative process and their subjective/objective thoughts."

On January 12, 1996, plaintiffs filed a motion to compel the

deposition testimony of the Town Council members. As support for

the motion, plaintiffs allege that the Town Council members enjoy

no testimonial privilege under the Speech or Debate Clause of the

United States Constitution, the Speech in Debate Clause of the

Rhode Island Constitution, or under the common law doctrine of

legislative immunity.

On January 29, 1996, defendants submitted a Memorandum of

Points and Authorities in Support of Motion for Protective Order

to prohibit the depositions. On January 31, 1996, plaintiffs

submitted a Supplemental Memorandum of Law in Support of Their

Motion to Compel Deposition Testimony.

Now for the court's consideration is the issue of whether

the plaintiffs are entitled to depose the Town Council members.

DISCUSSION

The immunity issues presented by the parties required a

review of their background and bases.

The United States Constitution, in pertinent part, provides

4 at Article I, Section 6, that "Senators and Representatives . . .

shall . . . for any Speech or Debate in either House . . . not be

questioned in any other Place." As noted by one commentator.

The speech or debate clause protects Congress from two kinds of threats to its deliberative autonomy. First, it blocks attempts by executive officials to use grand jury investigations and criminal prosecutions as means of calling into question 'the legislative acts of . . . members of Congress.1 Second, and more generally, the clause insures 'that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions.1

L. Tribe, American Constitutional Law § 5-18, p. 370 (2d ed. 1988) (footnotes omitted) .

From its roots, the Speech or Debate Clause attempts to

guard legislative independence within a governmental setting

based on the separation of powers. Rotunda & Nowak, Treatise on

Constitutional Law: Substance and Procedure § 8.6 (2d ed. 1992).

In essence, the Clause affords members of Congress "absolute

immunity which shields them from any sort of attack based on

their 'legislative acts' - that is, acts which are 'an integral

part of the deliberative and communicative process by which

Members participate in committee and House proceedings with

respect to the consideration and passage or rejection of proposed

legislation or with respect to other matters which the

Constitution places within the jurisdiction of either House.1"

Barcelo v. Aqosto, 876 F. Supp. 1332, 1339 (D.P.R. 1995)(quoting

5 Gravel v. U.S., 408 U.S. 606, 625, 92 S. C t . 2614, 2627, 33

L.Ed.2d 583, reh'q denied, 409 U.S. 902, 93 S. C t . 98, 34 L.Ed.2d

165 (1972)). Conversely, "the Clause provides no protection for

activities which are essentially 'political in nature1 because

the clause 'does not prohibit inquiry into activities that are

casually or incidentally related to legislative affairs but not a

part of the legislative process itself.1" Barcelo, 876 F. Supp.

at 1339 (quoting U.S. v. Brewster, 408 U.S. 501, 528, 92 S. C t .

2531, 2545, 33 L.Ed.2d 507 (1972)).

In evaluating whether a certain action is protected, a court

is obligated to determine "whether the activity is essential to

the legislature's deliberations or whether permitting inquiry

into the activity would threaten its integrity and independence."

Barcelo, 876 F. Supp. at 1339; see also Barcelo v. Aqosto, No.

95-1235 (1st Cir. January 31, 1996). After all, guarding the

"integrity and independence" of our legislature is a motivating

factor behind the Speech and Debate Clause Immunity, an immunity

which protects against "possible prosecution by an unfriendly

executive and conviction by a hostile judiciary." U.S. v .

Johnson, 383 U.S. 169, 179, 86 S. C t . 749, 754, 15 L.Ed.2d 681

(1966) .

By its own terms the Speech or Debate Clause applies only to

federal legislators. See Lake Country Estates, Inc. v. Tahoe

6 Regional Planning Agency, 440 U.S. 391, 404, 99 S. C t . 1171,

1178, 59 L.Ed.2d 401 (1979). The Speech or Debate Clause,

however, does have a bearing on the issue currently under

consideration.

The Supreme Court has held that an immunity, substantially

similar to that encompassed in the Speech or Debate Clause, is

recognized under federal common law. Tenney v. Brandhove, 341

U.S. 367, 376, 71 S. C t . 783, 95 L.Ed. 1019 (1951). This federal

common law immunity protects state legislators acting within "the

sphere of legitimate legislative activity." Id. In Tenney, the

Court concluded that the common law legislative immunity, which

developed from the English parliamentary struggles of the

sixteenth and seventeenth centuries not to mention American

colonial history, is imperative for state legislators "'in order

to enable and encourage a representative of the public to

discharge his public trust with firmness and success . . ..1"

Id. at 373, 71 S. C t . at 786 (guoting II Works of James Wilson

(Andrews ed. 1896) 38). Invariably, the Court in Tenney,

"embraced absolute legislative immunity because it helps

guarantee that legislators are free to legislate, unfettered by

fear of constituents' lawsuits." Acevedo-Cordero v. Cordero-

Santiago, 958 F.2d 20, 22(1st Cir. 1992). Thus, although the

immunity under the Speech or Debate Clause is separate and

7 distinct from the federal common law immunity, "[w]hen the

Justices initially recognized state legislative immunity as a

component of federal common law, they turned to the Speech or

Debate Clause for guidance anent the contours of the doctrine."

National Ass'n of Social Workers v. Harwood, 69 F.3d 622, 629

(1st Cir. 1995)(citing Tenney, 341 U.S. at 376-79, 71 S. C t . at

788-90)). Eventually, "the [Supreme] Court acknowledged that the

immunities enjoyed by federal and state legislators are

essentially coterminous." Harwood, 69 F.3d at 629 (citing

Supreme Court of Virainia v. Consumers Union of the U.S., Inc.,

446 U.S. 719, 732-33, 100 S. C t . 1967, 1974-75, 64 L.Ed.2d 641

(1980) ) .

From a general standpoint, immunity for legislative acts

attaches to state legislators, see, Tenney, 341 U.S at 367;

Harwood, 69 F.3d at 631, regional public officials, see, Lake

Country, 440 U.S. at 391, and local or municipal officers, see

Acevedo-Cordero, 958 F.2d at 22-23. In recognizing a legislative

immunity at the local level, the First Circuit recognized no

"material distinction between a local legislator and a regional

legislator with regard to a need for immunity." Id.

Importantly, "'the nature of municipal government may make the

need to guell a legislator's fear of personal retribution

particularly [and egually] compelling.'" Id. at 23 (guoting Gorman Towers, Inc. v. Boqoslavskv, 626 F.2d 607, 611-14 (8th

Cir. 1980)). Without a doubt "'[b]ecause municipal legislators

are closer to their constituents than either their state or

federal counterparts, they are, perhaps, the most vulnerable to

and least able to defend lawsuits caused by the passage of

legislation.1" Acevedo-Cordero, 958 F.2d at 23 (citing Ligon v.

State of Md., 448 F. Supp. 935, 947 (D.Md. 1977)).

As a tangential but relevant aside, decisions issued by the

Rhode Island Supreme Court indicate that the scope and analysis

of legislative immunity afforded under the Constitution of Rhode

Island is virtually identical to the scope and analysis

pertaining to the federal common law legislative immunity.

Holmes v. Farmer, 475 A.2d 976 (R.I., Apr. 10, 1984); Marra v.

0 1Leary, 652 A.2d 974 (R.I., Jan. 25, 1995) ("Inguiry by the court

into actions or motivations of the legislators in proposing,

passing, or voting upon a particular piece of legislation * * *

falls clearly within the most basic elements of legislative

privilege." (citation omitted).).

Unlike the doctrine of gualified immunity, which only

provides a bar to liability for damages where the immune actor

can show the reasonableness of his action, the "doctrine of

absolute immunity provides a complete bar to civil liability for

damages . . . ." Acevedo-Cordero, 958 F.2d at 22. Absolute immunity enables legislators to be free, not only from "the

consequences of litigation's results but also from the burden of

defending themselves." Dombrowski v. Eastland, 387 U.S. 82, 85,

87 S. C t . 1425, 1427, 18 L.Ed.2d 577 (1967). As specifically

noted by a variety of jurisdictions, "[1]egislative immunity not

only protects state [and local] legislators from civil liability,

it also functions as an evidentiary and testimonial privilege."

Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D.

2 92, 297 (D .M d . 1992); see also 2BD Associates Ltd. Partnership

v. County Com'rs for Queen Anne's County, 896 F. Supp. 528, 531

(D.Md. 1995)("the effect of the doctrine is twofold; it protects

legislators from civil liability, and it also functions as an

evidentiary and testimonial privilege."); Suhre v. Board of

Com'rs, 894 F. Supp. 927, 931 (D.N.C. 1995)("The purpose of this

immunity is not just to shield from liability but also from the

burden of defending suits.").

The rationale for affording state, regional, and local

legislators a testimonial privilege is as compelling as the

rationale for providing immunity from civil liability.

Effectuating the intentions of the legislative immunity doctrine,

legislators acting within the realm of legitimate legislative

activity, should not be required to be a party to a civil action

concerning legislative activities, nor should they be required to

10 testify regarding those actions. Marylanders for Fair

Representation, 144 F.R.D. at 2 92; see also Schlitz v. Com, of

V a ., 854 F.2d 43, 46 (4th Cir. 1988)("[t]he purpose of the

doctrine is to prevent legislators from having to testify

regarding matters of legislative conduct, whether or not they are

testifying to defend themselves"). As is certainly true in the

context of the Speech or Debate Clause, the common law

legislative immunity likewise may be said to "protect the

integrity of the legislative process by insuring the independence

of individual legislators." Brewster, 408 U.S. at 507.

"Under current legal theory, [legislative] immunity attaches

or does not attach depending on what kind of action was performed

rather than on who performed the action." Acevedo-Cordero, 958

F.2d at 23; see also Barcelo, No. 95-1235, slip op. at 14-15 (1st

Cir. January 31, 1996). In Cutting v. Muzzev, 724 F.2d 259 (1st

Cir. 1984), the First Circuit explored the differences between

proceedings legislative in character, which are protected by

absolute immunity, and actions that are administrative in nature,

which are not protected. The Court, in Cutting, set forth an

analysis by which to make this determination.

The first test focuses on the nature of the facts used to reach the given decision. If the underlying facts on which the decision is based are 'legislative facts', such as 'generalizations concerning a policy or state of affairs,1 then the decision is legislative. If the facts used in the decisionmaking are more specific, such as those that relate

11 to particular individuals or situations, then the decision is administrative. The second test focuses on the 'particularity of the impact of the state of action1. If the action involves establishment of a general policy, it is legislative; if the action 'single[s] out specifiable individuals and affect[s] them differently from others', it is administrative.

Id. at 261 (citing Developments in the Law - Zoning, 91 Harv.L.Rev. 1427, 1510-11 (1978)).

Boiling the Cutting standard down to its essence, "[i]t is

the function of the government official that determines whether

or not he is entitled to legislative immunity, not his title."

Marylanders for Fair Representation, 144 F.R.D. at 298. This

approach entails a consideration of the "nature of the functions

with which a particular official or class of officials has been

lawfully entrusted" as well as "the effect that exposure to

particular forms of liability would likely have on the

appropriate exercise of those functions." Forrester v. White,

484 U.S. 219, 224, 108 S. C t . 538, 542, 98 L.Ed.2d 555 (1988);

see also Lake Country Estates, supra, 440 U.S. at 405 n. 30, 99

S. C t . at 1179 n. 30. Conseguently, of greater importance than

an examination of the particular governmental branch, to which an

official is assigned, is the official's role in a specific

governmental activity and whether "the absence of immunity would

have a 'chilling effect1 upon the official's performance of his

duties." Marylanders for Fair Representation, 144 F.R.D. at 299.

12 The end result of this "functional" approach is that "an official

with title of legislator does not receive absolute immunity for

actions that are administrative in nature, and conversely, an

official whose title is that of an executive [may] receive

absolute immunity for actions which are legislative in nature."

2BD Associates, 896 F. Supp. at 532.

In determining function, " [a] local governmental body acts

in a legislative capacity when it engages in the process of

'adopt[ing] prospective, legislative-type rules.1" Id. (guoting

Scott v. Greenville County, 716 F.2d 1409, 1423 (4th Cir. 1983));

see also Front Roval and Warren County Indus. Park Corp. v. Town

of Front Roval, Va., 865 F.2d 77, 79 (4th Cir. 1989). However,

if the particular regulation singles out specific individuals and

influences them differently from others, the action will be

deemed administrative. Trevino By and Through Cruz v. Gates, 17

F.3d 1189, 1191 (9th Cir. 1994)("[N]ot all governmental acts by .

. . a local legislature . . . are necessarily legislative in

nature."); Crymes v. DeKalb County, G a ., 923 F.2d 1482, 1485

(11th Cir. 1991)("[A]lthough a local legislator may vote on an

issue, that alone does not necessarily determine that he or she

was acting in a legislative capacity." Cinevision Corp. v. City

of Burbank, 745 F.2d 560, 580 (9th Cir. 1984), cert, denied, 471

U.S. 1054, 105 S. Ct. 2115, 85 L.Ed.2d 480 (1985)).

13 Some examples of actions which have been judged

administrative in nature are: (1) actions of a town planning

board imposing certain conditions upon the development of a

particular subdivision. Stone's Auto Mart, Inc. v. City of St.

Paul, Minn., 721 F. Supp. 206, 210 (D.Minn. 1989); (2) a city

council's denial of a petition to rezone a parcel of land, id.;

(3) actions by county council members withholding a builder's

permit, Scott, 716 F.2d at 1423; (4) refusal to approve a plan of

development or attempts to hinder construction of a project,

Fralin & Waldron, Inc. v. Henrico County, Va., 474 F. Supp. 1315,

1320-21 (E.D.Va. 1979); (5) actions directed at a specific

developer, see Cutting, 724 F.2d at 261; (6) a discussion on

whether new positions for specific individuals could be funded,

Vacca v. Barletta, 933 F.2d 31, 33 (1st Cir. 1991); and (7) a

legislator's decision to discharge an individual, Nearon-

Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27-28 (1st Cir.

1994) .

Aside from the consideration of whether an action should be

considered legislative or administrative, courts have noted

critical differences between the principles underlying the

constitutional immunity and the common law immunity, thereby

warranting a more limited application in the protections afforded

the latter. "For example, the [Supreme] Court has held that the

14 separation of powers concerns which underlie constitutional

immunity - and which are not an aspect of the common law immunity

- dictate that federal lawmakers enjoy a broader privilege than

their state counterparts . . . Barcelo, 876 F. Supp. at 1340

(citing U.S. v. Gillock, 445 U.S. 360, 100 S. C t . 1185, 63

L.Ed.2d 454 (1980)). Thus, in the federal common law legislative

immunity context, "absolute immunity does not extend to even

traditionally legislative actions of officials taken . . . in bad

faith, because of corruption, or primarily in furtherance of

personal instead of public interests." Haskell v. Washington

Tp ., 864 F.2d 1266, 1278 (6th Cir. 1988); 2BD Associates, 896 F.

Supp. at 533 n. 5; Bruce v. Riddle, 631 F.2d 272, 276-77 n. 2

(4th Cir. 1980). Notably, in those circumstances where the

immunity is challenged on bad faith, corruption, or personal

interests grounds, a court should consider whether there is a

chain of events or objective evidence from the outset supporting

invidious intent behind the legislative action. Village of

Arlington Heights v. Metropolitan Housing Development Corp., 42 9

U.S. 252, 267-68, 97 S. C t . 555, 504-65, 50 L.Ed.2d 450 (1977);

Orange v. County of Suffolk, 855 F. Supp. 620, 623 (E.D.N.Y.

Mere speculation into the improper motives behind the

regulation will not suffice to overcome the immunity. City of

15 Las Vegas v. Folev, 747 F.2d 1294, 1297 (9th Cir. 1984)("statute

will not be invalidated on the basis of an 'alleged illicit

legislative motive,1 U.S. v . O'Brien, 391 U.S. [367,] 383, 88 S.

Ct. [1673,] 1682, [20 L.Ed.2d 672 (1968)]"); Soon Ring v.

Crowley. 113 U.S. 703, 710-11, 5 S. C t . 730, 734-35, 28 L.Ed.

1145 (1885)("The diverse character of such motives, and the

impossibility of penetrating into the hearts of men and

ascertaining the truth, precludes . . . such inguiries as

impracticable and futile."); Tenney, 341 U.S. at 377 ("The

privilege would be of little value if [legislators] could be

subjected to . . . the hazard of a judgment against them based

upon a jury's speculation as to motives."). Rather, what must be

considered is whether infringement of the immunity rises to a

level of public need, i.e. whether disclosure is reguired in

order to fully develop the relevant facts. Orange, 855 F. Supp.

at 624. Moreover, the objective evidentiary approach is

consistent with the principle that, generally speaking, the

motivation of local legislators in passing regulations is

protected from disclosure. Searinqtown Corp. v. Incorporated

Village of North Hills, 575 F. Supp. 1295, 1299 (E.D.N.Y. 1981);

Schlitz, 854 F.2d at 45 (if an inguest into legislative motive

would command the testifying of legislators, pertaining to their

conduct in a legislative capacity, the doctrine of legislative

16 immunity has omnipotent weight).

Although the doctrine of legislative immunity does apply in

the personal testimony realm, the immunity does not extend to

certain types of documentation reguests. Corporacion Insular de

Seguros v. Garcia, 709 F. Supp. 288, 297 (D.P.R. 1989).

Accordingly, a defendant will be reguired to produce, at the

reguest of a plaintiff, any documents that were prepared by a

committee during the course of its deliberations. Marylanders

for Fair Representation, 144 F.R.D. at 302 n. 20; Corporacion

Insular de Seguros, 70 9 F. Supp. at 2 97 ("documents created by

legislative activity can, if not protected by any other

privilege, be disclosed and used in a legal dispute that does not

directly involve those who wrote the document, i.e., the

legislator or his aides") . Similarly, immunity does not attach

if there has been a waiver. Such a waiver must be explicit,

however. 2BD Associates, 896 F. Supp. at 535. Finally,

discovery aimed at the enforcement of a regulation, or pertaining

to acts unrelated to the formulation or passage of the

regulation, are not barred from discovery under the immunity.

2BD Associates, 896 F. Supp. at 534.

Turning to the case at hand, the plaintiffs have indicated

that they "are entitled to inguire into the legislative process

surrounding the enactment of the moped reduction ordinance and

17 the 'subjective/objective thoughts' of the Town counselors (sic)

who enacted it." Plaintiffs' Memorandum of Law in Support of

Their Opposition to Defendants' Motion for Protective Order and

in Support of Their Motion to Compel Deposition Testimony at page

5. However, as noted previously in this Order, a plaintiff

challenging the implementation of a regulation will not be

entitled to discover the subjective motives of a legislator.

This restrictive policy is particularly warranted where there is

no evidence tending to suggest that the impetus behind an

ordinance involves bias, corruption or prejudice or that the

process leading to implementation of the regulation infringed on

an "overriding, free-standing public policy." Marylanders for

Fair Representation, 144 F.R.D. at 304.

The Town Council for New Shoreham is, without guestion,

vested with the ability and authority to institute and pass

regulations and ordinances. The Supreme Court of Rhode Island

has repeatedly held that the state enabling act empowers a town

to establish various regulations in accord with its police power.

R .I . Home Builders v. Budlonq Rose Co., 77 R.I. 147, 74 A.2d 237

(1950); Adams v. Zoning Board of Review of Providence, 86 R.I.

396, 135 A.2d 357 (1957); Town & Country Mobile Homes, Inc. v.

Zoning Board of Review of City of Pawtucket, 91 R.I. 464, 165

A.2d 510 (1960); Lumb v. Zoning Board of Review of Town of

18 Bristol, 91 R.I. 498, 165 A.2d 504 (1960). The Rhode Island

Supreme Court has also held that when city council members

undertake to institute a regulation pursuant to its delegated

police powers, the members are performing legislative functions.

R.I. Home Builders, 77 R.I. at 147, 74 A.2d at 237; see also

Town & Country Mobile Homes, Inc., 91 R.I. at 464, 165 A.2d at

510 ("The enactment of a zoning ordinance or amendment thereto is

a legislative act.").

With regard to the institution and passage of the moped

regulation at issue, the record is replete with indications that

the Town Council's determinations and conclusions were in

furtherance of its police power. Specifically, the record

indicates that the primary basis behind the regulation

restricting mopeds was the town's concern over the disparate

number of accidents caused by or involving mopeds. The need for

the moped regulation was heavily explored and discussed during a

public hearing held on October 17, 1994. During the course of

this hearing, evidence was presented demonstrating that from 1983

through 1995, there were 804 moped accidents resulting in 918

injuries. Further, a Captain of the local rescue organization

testified that "for the past decade, treatment of moped related

injuries has been the single largest burden on the Block Island

Rescue Sguad." The Captain also remarked that in 1994, moped

19 calls accounted for 48 percent of the summer daytime calls for

the rescue organization. The Captain finally indicated that

during the summer of 1994 "the mopeds had an accident rate of

36.25 per 100 mopeds on the road."

Within the course of the public hearing, two doctors also

offered testimony pertaining to the health and safety reasons

behind the proposed amendment. Dr. Peter Brassard, the island's

physician, addressed in detail the types and severity of

accidents or injuries stemming from moped use on the island.

Another physician. Dr. Barbara DeBuone, director of the Rhode

Island Department of Health, indicated in a letter that even the

institution of mandatory helmets and eye protection, and a 25

mile-per-hour speed limit have failed to prevent moped accidents.

To restate, the record in this case suggests that at the

core of the amended ordinance was the concern pertaining to the

continued dangers to public health and safety generated by the

operation of mopeds on Block Island.

The effect on plaintiffs, following the passage of the

amended ordinance, may be said to be merely an incidental burden

deriving from the town's legitimate exercise of its police power.

Notably, however, plaintiffs have failed to offer any indications

suggesting that the town's decision was based on factors other

than generalizations concerning a policy or state of affairs.

20 Plaintiffs have also stated that depositions are necessary

in order to flush-out, from defendants, the issue of whether the

enactment and enforcement of the moped reduction ordinance is

nothing more that the continuation of a consistent custom,

policy, practice and usage of the town to restrict, ban or make

commercially impractical the rental of mopeds on Block Island.

The plaintiffs contend the First Circuit has expressly allowed,

irrespective of legislative immunity, an inguiry into this type

of information. Acevedo-Cordero, 958 F.2d at 21-23.

Plaintiffs misconstrue the reasoning noted by the First

Circuit. At issue in Acevedo-Cordero was the guestion of whether

the actions taken by the Municipal Assembly of Ponce were

legislative or administrative in nature. Id. at 23.

Specifically, the particular action involved the elimination of

approximately 600 positions in civil service. Id. at 21. The

First Circuit noted that the actions of the Assembly could not,

on their face, be characterized as legislative or administrative.

Id. at 23. Thus, the case was remanded for this determination.

Id. at 24.

The pertinent factual background in the case at bar is

easily contrasted with those presented in Acevedo-Cordero.

Fundamentally, without rehashing the prior discussion, the

actions of the New Shoreham Town Council pertain to an exercise

21 of police power. Consequently, the actions surrounding the

enactment of the moped regulation are precisely those that may be

characterized as being within the legislative sphere. Orange,

855 F. Supp. at 624.

Unlike in Acevedo-Cordero, where the question arose as to

whether the Assembly acted outside the legislative sphere, the

situation here is one in which plaintiffs are attempting to

pierce a Town Council action which is, in and of itself,

legislative in nature. This, the plaintiffs will be precluded

from doing. See id. (the motivation of a local legislator in

furtherance of a legislative duty is precisely the kind of

activity protected by legislative immunity). All things

considered, subscribing to plaintiffs' argument would defeat the

ultimate purpose behind the legislative immunity doctrine.

Plaintiffs' rationale would require any legislator to explain his

actions, even if purely legislative, merely upon an unfounded

allegation of improper motive.

Recognizing the authority vested in the Town Council, the

drafting of the ordinance at issue is properly characterized as

"legislative" in function, in that it involved discretion or

"line-drawing" and entailed the adoption of prospective,

legislative-type rules. This being the case, the motives, roles

and responsibilities assumed by the New Shoreham Town Council

22 members, in consideration and passage of the ordinance pertaining

to mopeds, was substantially legislative and therefore is

protected from disclosure by legislative immunity. See Burkhart

Advertising, Inc. v. City of Auburn, Ind., 786 F. Supp. 721, 735

(N.D.Ind. 1991). To the extent the plaintiffs seek to depose the

Town Council members concerning their motives behind

implementation of the ordinance, the reguest is denied.

Nevertheless, the plaintiffs have also indicated that they

are entitled to depose the defendants with regard to actions that

are administrative in nature. As noted previously, the law is

well-established that legislative immunity does not apply "when

local zoning officials do more than adopt prospective,

legislative-type rules and take the next step into the areas of

enforcement." 2BD Associates, 896 F. Supp. at 534. Therefore,

to the extent plaintiffs seek to depose the Town Council members

relative to administrative issues, i.e. enforcement, application

of the ordinance, and other acts unrelated to the drafting and

passage of the ordinance, the plaintiffs are entitled to do so.

CONCLUSION

Applying the rationale of legislative immunity cases within

the First Circuit, as well as from other jurisdictions, to

legislative testimonial privilege, this court finds that there is

23 no basis for allowing the plaintiffs to depose the New Shoreham

Town Councilors for the purpose of determining or inguiring into

the individual motives behind the enactment of the ordinance at

issue. The doctrine of legislative immunity bars the plaintiffs

from inguiring about specific legislative actions taken and the

reasons behind such actions. Aside from this condition, however,

plaintiffs are entitled to depose the Town Councilors regarding

actions that are administrative in nature. Finally, to the

degree plaintiffs seek actual records or documentation pertaining

to the ordinance at issue, they are so entitled. Corporacion

Insular de Seguros, 70 9 F. Supp. at 2 97.

For the reasons set forth above, plaintiffs' motion to

compel deposition testimony is granted in part and denied in

part.

SO ORDERED.

James R. Muirhead United States Magistrate Judge

Date: February 14, 1996

cc: Robert B. Mann, Esg. Mark J. Hagopian, Esg. Marc DeSisto, Esg. Merlyn P. O'Keefe, Esg. Raymond F. Burghardt, Clerk, US District Court - RI Amato A. DeLuca, Esg.