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July 9, 1982

Robert J. VISSER, Plaintiff,
Armand MAGNARELLI, James C. Tormey, Jr., Joseph A. Nicoletti, Bernard J. Mahoney, John A. DeFrancisco, Walter J. Ludovico, Edward S. Nowakowski, James T. Walsh, James P. McCarthy, Nancy Larraine Hoffmann, individually and collectively as constituting the Common Council of the City of Syracuse, New York, and Joseph Falge, Defendants

The opinion of the court was delivered by: MUNSON


Plaintiff brought this civil rights action for injunctive and monetary relief to protect his position as City Clerk of the City of Syracuse, New York. This Court found in favor of plaintiff, and enjoined defendants-councilors from dismissing or failing to reelect him solely on grounds of his political affiliation. 530 F. Supp. 1165. The Court assumes the reader's familiarity with that opinion. Presently before the Court is plaintiff's motion for a determination of damages and costs.


 Plaintiff seeks only attorneys' fees as a part of his costs. *fn1" 42 U.S.C. § 1988 (1976), as amended by Equal Access to Justice Act, Pub.L.No.96-481, § 205(c), 94 Stat. 2330 (1980), provides in pertinent part that "(i)n any action or proceeding to enforce a provision of (42 U.S.C. § 1983, inter alia ), the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Section 1988's legislative history indicates that counsel fees should ordinarily be awarded to prevailing litigants, unless special circumstances would render an award unjust. S.Rep.No.94-1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5912 (Senate Report) (quoting Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S. Ct. 964, 966, 19 L. Ed. 2d 1263 (1968) (per curiam )). This liberal policy reflects Congress' purpose not only to penalize constitutional violators but to encourage resort to courts to seek judicial relief for such transgressions. Id.; Nadeau v. Helgemoe, 581 F.2d 275, 280 (1st Cir. 1978).

 Here, a majority of the Syracuse Common Council violated plaintiff's First Amendment rights of freedom of belief and association by refusing to rehire Visser solely because of his political affiliations. 530 F. Supp. at 1173. If this Court determines, however, that the Republicans' action was "legislative," Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 100 S. Ct. 1967, 64 L. Ed. 2d 641 (1980), precludes imposing counsel fees on them personally. *fn2"

 Properly interpreted, the Common Council majority's action falls outside the scope of absolute legislative immunity. Supreme Court language discusses the extent of the privilege only in general terms; *fn3" no precise formulation exists to guide this Court. Having reviewed the available possibilities, the Court adopts the two-pronged analysis of Developments in the Law-Zoning, 91 Harv.L.Rev. 1427, 1510-11 (1978). Under that test, the Court must first discern "the type of underlying facts on which the decision is based," and then consider "whether the government action results in a differentiable impact on specifiable individuals." Id. at 1510. *fn4"

 The action here was clearly administrative. The Republican councilors based their decision not to rehire Visser solely on the specific fact of his party affiliation. No consideration of the general qualifications of a city clerk pervaded the Council's decision. See id. at 1510-11 (distinguishing between legislative and administrative facts). Similarly, the Council's vote impacted only one individual-Visser. Even though the councilors' vote was the formal means of making their decision, their action can only be characterized as an administrative personnel matter, not legislative.

 Section 3-106(2) of the Syracuse City Charter buttresses this conclusion. The section requires the Council to "adopt rules governing its officers and employees." *fn5" Similarly, other sections of the Charter describing the Council's duties reiterate the principle that the Council often involves itself in administrative housekeeping matters far removed from legislative acts. See, e.g., Charter § 8-106 (Council to prescribe hours that city offices are to be open to the public); id. § 3-109 (Council may require "the form in which ... proceedings and reports ... shall be issued"). Actions under these provisions, like the Council's non-rehiring of its chief employee, the City Clerk, involve no policy formulation. They are not legislative actions.

 Legislative immunity failed to exempt a Congressman's unconstitutional employment dismissal in Davis v. Passman, 544 F.2d 865 (5th Cir. 1977), rev'd, 571 F.2d 793 (5th Cir. 1979) (en banc ), rev'd, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979). Congressman Passman hired and then fired Shirley Davis as a deputy administrative assistant, writing her that he needed a man in that position. 544 F.2d at 867. Davis sued, alleging sex discrimination. The Fifth Circuit panel rejected the Congressman's claim that legislative immunity through the Speech or Debate Clause barred the suit. *fn6" The court noted that Supreme Court precedent construing the clause refused to make legislative immunity for federal lawmakers all-pervasive. *fn7" The panel limited legislative immunity to acts "intimately cognate to the legislative process" and held that "(w)hen members of Congress dismiss employees they are neither legislating nor formulating legislation. The fear of judicial inquiry into dismissal decisions cannot possibly affect a legislator's decisions on matters pending before Congress." Id. at 879, 880. *fn8"


 A finding of a lack of absolute legislative immunity does not end the inquiry into personal liability for counsel fees. The legislative history of section 1988 indicates that proof of bad faith is necessary to render a defendant liable for fees in his individual capacity. Senate Report, supra, 1976 U.S.Code Cong. & Ad.News at 5913 n.7 (citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975)). For the following reasons, this Court holds that a failure to meet the requirements of the good faith qualified immunity test generally available to other government officials, and extended to legislators acting in an administrative or executive capacity, *fn9" satisfies Alyeska's bad faith standard.

 A. Alyeska itself contains no discussion of "bad faith," merely referring the reader to Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962). Alyeska, 421 U.S. at 258-59, 95 S. Ct. at 1622. Vaughan allowed an award of counsel fees against defendants who, because of their "callous(ness)" and "recalcitrance," forced plaintiff "to hire a lawyer and go to court to get what was plainly owed him." 369 U.S. at 530-31, 82 S. Ct. at 999. The Vaughan Court, however, failed to define bad faith beyond the facts of the case. *fn10" See also Lamb v. Sallee, 417 F. Supp. 282, 288 (E.D.Ky.1976) (defining bad faith as " "unreasonable, obdurate obstinancy' " (quoting Monroe v. Bd. of Comm'rs, 453 F.2d 259, 263 (6th Cir.), cert. denied, 406 U.S. 945, 92 S. Ct. 2045, 32 L. Ed. 2d 333 (1972), and citing Monroe for the proposition that "one factor to be considered under this standard is the state of the law as it existed at the time of the acts complained of.").

 B. Until Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), the qualified immunity test contained two elements-an objective and a subjective prong. Wood v. Strickland, 420 U.S. 308, 322, 95 S. Ct. 992, 1000-01, 43 L. Ed. 2d 214 (1975). Harlow reaffirmed Wood "s objective prong, but eliminated the subjective element. Under Harlow, a government official is liable if his "conduct ... violate(s) clearly established statutory or constitutional rights of which a reasonable person would have known." -- - U.S. at -- , 102 S. Ct. at 2738, 72 L. Ed. 2d at -- - (citing, inter alia, Wood ). Under Wood "s objective prong, the official is also deemed to know settled law. 420 U.S. at 321-22, 95 S. Ct. at 1000-01. That duty resonates with Vaughan's concept that counsel fees are proper when a plaintiff must go to court to get what is plainly his, 369 U.S. at 531, 82 S. Ct. at 999, and with Monroe's consideration of the "state of the law." 453 F.2d at 263.

 The Wood Court concluded that if a defendant failed its test, "his action cannot reasonably be characterized as being in good faith." Id. *fn11" The similarity between Harlow, Wood and Vaughan justifies the conclusion that defendants failing the qualified immunity test may have attorneys' fees ...

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