Absolute legislative immunity

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Absolute legislative immunity prevents legislators from being sued for conduct associated with their legislative activities, just as absolute judicial immunity likewise protects judges against most lawsuits.

The Court of Appeals for the Second Circuit held that the legislative immunity enjoyed by the members of a state legislative committee bars an action for declaratory and injunctive relief just as it bars an action for damages. Star Distributors, Ltd. v. Marino, 613 F.2d 4 (1980). That decision embraced the similarity between common-law immunity and the Speech or Debate Clause, and the Second Circuit reasoned that legislative immunity should protect state legislators in a manner similar to the protection afforded Congressmen.

The Courts of Appeals for the Fifth and Eighth Circuits have likewise dismissed on immunity grounds suits seeking both damages and injunctive relief but without separately addressing the issue of immunity from prospective relief.

  • Safety Harbor v. Birchfield, 529 F.2d 1251 (CA5 1976)
  • Smith v. Klecker, 554 F.2d 848 (CA8 1977)
  • Green v. DeCamp, 612 F.2d 368 (CA8 1980)

The Court of Appeals for the Fourth Circuit, however, once took the contrary view and rejects the notion that the legislative immunity enjoyed by state officials bars suits for prospective relief. Jordan v. Hutcheson, 323 F.2d 597 (1963); Eslinger v. Thomas, 476 F.2d 225, 230 (1973). Both opinions of the Court of Appeals for the Fourth Circuit, however, were rendered prior to the Supreme Court's decision in Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975). The Court of Appeals for the Ninth Circuit may have a similar view with respect to the immunity enjoyed by officials of a regional body exercising both legislative and executive powers. Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353 (1977).[1]


  1. All these decisions are quite dated now and should be checked to see if they are still good law.