possible set of facts which could demonstrate that Friends or Peckelis acted as willful participants in the creation of legislation, allegedly based upon political animus, simply by being a repository of campaign contributions. Therefore the § 1983 claims against Friends and Peckelis are dismissed with prejudice.
Therefore, the fourth cause of action, based upon a First Amendment § 1983 claim, is sustained against the Town and Nehrich in his individual capacity. The First Amendment § 1983 cause of action is dismissed against all other defendants, officially and individually. The plaintiffs are granted leave to replead this cause of action against the proper CSEA entity.
2. Fourth, Fifth, and Ninth Amendment Claims
The plaintiffs' fifth cause of action alleges that the elimination of their positions violated the Fourth, Fifth, and Ninth Amendments under § 1983. (Compl. P 120.) The plaintiffs' fifth cause of action must be dismissed with prejudice, as the allegations can under no circumstances establish a violation of these provisions of the Bill of Rights.
a. Fourth Amendment
Although the Fourth Amendment is applicable to the states as incorporated through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961), the plaintiffs have alleged no facts that implicate a Fourth Amendment right. The Fourth Amendment has been interpreted to protect against unreasonable searches and seizures where there exists a reasonable expectation of privacy. United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984); Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). Searches and seizures of public employees' personal property are subject to the restraints of the Fourth Amendment. O'Connor v. Ortega, 480 U.S. 709, 715, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987). However, "the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis." Id. at 718.
Here the plaintiffs do not allege a search or seizure, or any conduct which implicates the Fourth Amendment. Therefore the plaintiffs Fourth Amendment allegation does not give rise to a § 1983 cause of action. See e.g. Sheppard v. Beerman, 18 F.3d 147, 152-53 (2d Cir.) (affirming dismissal of Fourth Amendment § 1983 cause of action in context of employment termination on failure to allege facts implicating Fourth Amendment rights), cert. denied, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994).
b. Fifth Amendment
The plaintiffs also allege a Fifth Amendment due process violation. (Compl. PP 120, 121.) The plaintiffs' right to due process of law with respect to action by a state or any of its subdivisions is derived from the Fourteenth Amendment. The Fifth Amendment in and of itself pertains only to actions of the federal government. As the plaintiffs have not alleged any acts by the federal government, or an act by any defendant associated with the federal government, the plaintiffs' Fifth Amendment § 1983 claim must be stricken. See e.g., Heath v. Highland Park Sch. Dist., 800 F. Supp. 1470, 1475 (E.D. Mich. 1992); Three Rivers Cablevision Inc. v. City of Pittsburgh, 502 F. Supp. 1118, 1134 (W.D. Penn. 1980).
c. Ninth Amendment
The plaintiffs conclusorily allege a Ninth Amendment violation as an additional basis for a § 1983 claim. (Compl. at P 120). This claim must also be stricken. Section 1983 claims must be based upon a specific constitutional guarantee. See Paul v. Davis, 424 U.S. 693, 700, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976) (dismissing § 1983 claim for failing to indicate specific constitutional guarantee safeguarding the allegedly infringed interest). The Ninth Amendment is recognized as a rule of construction, not one that protects any specific right. Laurence H. Tribe, American Constitutional Law § 11-3, at 774-75 (2d ed. 1988). No independent constitutional protection is recognized which derives from the Ninth Amendment and which may support a § 1983 cause of action. See Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991) (Ninth Amendment claim has no applicability in suit under § 1983); Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991) (section 1983 Ninth Amendment claim meritless as not independently securing any constitutional rights), cert. denied, 503 U.S. 951, 117 L. Ed. 2d 650, 112 S. Ct. 1514 (1992); Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986) (Ninth Amendment has never been recognized as independently securing any constitutional right, for purposes of pursuing a civil rights claim) (citing cases). Moreover, the Ninth Amendment has not been interpreted to be incorporated into the due process clause of the Fourteenth Amendment, and therefore has no applicability to the allegations against these non-federal actors. See Tribe, § 11-2, at 772-73.
Therefore, the fifth cause of action, which is based upon the Fourth, Fifth, and Ninth Amendments is dismissed with prejudice.
II. SECTION 1985 CLAIMS
In the sixth count of the complaint, plaintiffs claim that the defendants conspired to violate their civil rights under 42 U.S.C. § 1985(3). (Compl. at PP 124-30.) Plaintiffs maintain that as members of the Republican Party they are a protected class. (Compl. P 125.) The defendants move to dismiss upon the ground that members of the Republican party do not comprise a protected class for the purposes of § 1985 liability. (Nun. Defs. Mem. of Law at 19); (Friends Mem. of Law at 9.) The Municipal defendants also move to dismiss the § 1985(3) claims against them in their individual capacity on the grounds of immunity. (Mun. Def. Mem. of Law at 18.)
To plead a violation of 42 U.S.C. § 1985(3) the plaintiffs must allege four elements: 1) a conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the law; and 3) an act in furtherance of the conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 828-29, 103 S. Ct. 3352, 77 L. Ed. 2d 1049 (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971)).
A. PROTECTED CLASS
The defendants' challenge to the plaintiffs' status as a class under the second required element of Scott and Griffin squarely raises the question of the viability of the Second Circuit's decision in Keating v. Carey, 706 F.2d 377 (2d Cir. 1983). In Keating, the court held that the allegation that the defendants discriminated against him because of his membership in a political party satisfied the class requirement under § 1985(3). Id. at 388 & n.18. Plaintiffs rely on Keating for the proposition that their membership in the Republican Party qualifies for protected class status, and that a § 1985 cause of action may be based upon political animus. (Pl. Mem. in Opp'n at 22.) The defendants assert that in light of Scott, section 1985 is limited to protecting race-based animus, and therefore, the plaintiffs do not qualify for § 1985(3) protection. (Mun. Defs. Mem. of Law at 19); (Friends Mem. of Law at 9.)
In Scott, the Supreme Court held that non-union employees were not a protected class, and continued the narrow interpretation of protected classes under § 1985 which began in Griffin. 463 U.S. at 830. The Scott Court consciously avoided a broad reading of the scope of § 1985 so to avoid creating a "general federal tort law" by reaffirming the Griffin requirement of "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Scott, 463 U.S. at 834 (citing Griffin, 403 U.S. at 102). The Court explicitly held that § 1985(3) did not reach economic or commercial animus, but left unanswered the meaning of the phrase, "perhaps otherwise class-based." Scott, 463 U.S. at 837. ("Even if the section must be construed to reach conspiracies aimed at any class or organization on account of its political views or activities, . . . we find no convincing support . . . for the proposition that the provision was intended to reach conspiracies motivated by bias toward others on account of their economic views, status or activities.") (emphasis in original). Similarly, in Bray v. Alexandria Women's Health Clinic, 122 L. Ed. 2d 34, 113 S. Ct. 753, 759 (1993), the Court was faced with the argument that women, as a class, qualified for protection under § 1985(3). However, the Bray Court declined to answer that question because it rejected the claim that groups opposed to abortion reflected an animus toward women generally. 113 S. Ct. at 759. The Court found that the classification at issue was a "definitional ploy." Id.
In Keating, the Second Circuit reviewed the legislative and historical context of the enactment of § 1985(3), and noted that the Ku Klux Klan was not merely a racist organization but also a political organization intent on intimidating others, particularly northern Republicans ("carpetbaggers"). 706 F.2d at 387 & n.17. In holding that a conspiracy based on political animus was actionable under § 1985(3), the court stated that "Congress did not seek to protect only Republicans, but to prohibit political discrimination in general." Id. Consequently, the Keating Court held that members of a political party qualify as a protected class under § 1985(3). Id. at 388.
In Scott, the Court stated, in dicta,
we find difficult the question of whether § 1985(3) provided a remedy for every concerted effort by one political group to nullify the influence of or do other injury to a competing group by use of otherwise unlawful means. To accede to that view would go far toward making the federal courts . . . the monitors of campaign tactics in both state and federal elections, a role that the courts should not be quick to assume.
463 U.S. at 836. The defendants urge this Court to follow this dictum and reject the holding of Keating, as the Seventh and Fourth Circuits have done. Grimes v. Smith, 776 F.2d 1359 (7th Cir. 1985); Harrison v. KVAT Food Mgt. Inc., 766 F.2d 155 (4th Cir. 1985); contra Conklin v. Lovely, 834 F.2d 543 (6th Cir. 1987). However, despite the cautionary wording of Scott, and the holdings of the Fourth and Seventh Circuits, this Court is bound by the holding in Keating which is still the law of this circuit.
Therefore, as the complaint alleges that the defendants were motivated by plaintiffs' membership in the Republican Party, this Court finds that the plaintiffs comprise a protected class under 42 U.S.C. § 1985(3).
B. SUFFICIENCY OF THE § 1985 CLAIMS
The plaintiffs claim that the Municipal defendants acted in concert with Nehrich and Friends to deprive them of employment on the basis of their political affiliation and in an effort to intimidate or chill the remaining employees' opposition political activity. (Compl. PP 2, 45, 65.)
1. Municipal Defendants
The Municipal defendants assert that the § 1985 claims must fail with respect to them because an "agreement between the Town and its own officers and employees cannot constitute a conspiracy." (Mun. Defs. Mem. of Law at 21.) In essence, they invoke the "intracorporate conspiracy" doctrine which is premised on the concept that a corporation generally cannot conspire with its employees or agents as all are considered a single legal entity. See Girard v. 94th St. & Fifth Ave. Corp., 530 F.2d 66 (2d Cir.) (applying intracorporate immunity to § 1985 cause of action), cert. denied, 425 U.S. 974, 48 L. Ed. 2d 798, 96 S. Ct. 2173 (1976)); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972) (same). This is particularly so where the officers and employees are alleged to be acting within the scope of their employment. Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978), cert. denied, 439 U.S. 1003, 58 L. Ed. 2d 679, 99 S. Ct. 613 (1978). Intracorporate immunity has also been extended to the context of conspiracies between a public entity and its employees. See Wintz v. Port Authority of New York & New Jersey, 551 F. Supp. 1323 (S.D.N.Y. 1982) (section 1985 would not apply unless plaintiff could show that external parties were involved) (citing Girard, 530 F.2d 66 (2d Cir. 1976)); Davidson v. Yeshiva University, 555 F. Supp. 75, 79 (S.D.N.Y 1982) (employees of university could not conspire with university under § 1985) (also citing Girard); Lieberman v. Gant, 474 F. Supp. 848 (D. Conn. 1979) (intracorporate immunity where each of the defendants acted within scope of their official position), aff'd, 630 F.2d 60 (2d Cir. 1980); see also Zombro v. Baltimore City Police Dept, 868 F.2d 1364, 1371 (4th Cir.) (police commissioner could not conspire with police department under § 1985 in allegedly unlawful employment determination), cert. denied, 493 U.S. 850, 107 L. Ed. 2d 106, 110 S. Ct. 147 (1989); Runs After v. United States, 766 F.2d 347, 354 (8th Cir. 1985) (members of tribal council could not, under § 1985, conspire with themselves or council as an entity in taking official action); Rabkin v. Dean, 856 F. Supp. 543, 551 (N.D. Cal. 1994) (city council members could not conspire with city to deny plaintiff salary increases for political reasons); Roybal v. City of Albuquerque, 653 F. Supp. 102, 107 (D. N.M. 1986) (citing cases); Gladden v. Barry, 558 F. Supp. 676 (D.D.C. 1983); Edmonds v. Dillin, 485 F. Supp. 722, 729 (N.D. Ohio 1980); but see Rebel Van Lines v. City of Compton, 663 F. Supp. 786, 791 (C.D. Cal. 1987) (declining to extend intracorporate immunity to context of § 1985).
Here it is alleged that the Municipal defendants conspired to develop and approve a budget reduction plan which eliminated plaintiffs' positions. Regardless of the motive or intent supporting the legislation, these are acts within the scope of their official duties. Therefore, the § 1985 claims against the Municipal defendants in their individual capacities must be dismissed, as a matter of law, as the allegation that their acts in furtherance of the conspiracy were solely within the scope of their duties as officials or employees of the Town. See Davidson, 555 F. Supp. at 79-80 (employees and agents cannot independently conspire with principal where allegation that defendants acted in official capacity only).
The intracorporate immunity doctrine is similar to the rationale under which the Municipal defendants are entitled to assert legislative immunity under a § 1983 claim. The basis thereof is that the acts by these defendants which allegedly infringed the plaintiffs constitutionally protected rights, are within the scope of their official duties. Some courts have simply applied the doctrine of official legislative immunity to individual capacity claims against local legislators under 42 U.S.C. § 1985. See e.g., Aitchison v. Raffiani, 708 F.2d 96, 99 (3d Cir. 1983); City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1256-57 (5th Cir. 1976); Rabkin v. Dean, 856 F. Supp. 543, 551 (N.D. Cal. 1994). In Tenney v. Brandhove, 341 U.S. 367, 372, 95 L. Ed. 1019, 71 S. Ct. 783 (1951), the Supreme Court held that legislative immunity applied to individual state legislators for acts "in a field where legislators traditionally have power to act" for a claim under both 42 U.S.C. §§ 1983, 1985(3). However, the extension of the doctrine of official legislative immunity to local legislators has explicitly been drawn in the context of § 1983 only. See Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1971); Goldberg v. Town of Rocky Hill, 973 F.2d 70, 72 (2d Cir. 1992). Although legislative immunity may be properly applied to the individual Municipal defendants for the claims under § 1985, this Court does not rely on that rationale.
Notwithstanding the dismissal of the § 1985(3) individual capacity claims against the Municipal defendants, the allegations that the officials and employees of the Town, as representatives of the Town (official capacity claims), conspired with Nehrich and Friends to develop and enact a policy which officially deprived plaintiffs of their first amendment rights, does sufficiently allege a § 1985(3) cause of action against the Town. See Edmonds v. Dillin, 485 F. Supp. 722, 729 (N.D. Ohio 1980) (municipality may be liable under § 1985 as an entity if engaged in conspiracy through policy or custom). Here the plaintiffs allege that the Town infringed their constitutional right of association via enactment of the legislated policy of elimination of their positions based on their political affiliation and activity. (Compl. P 119.)
2. Nehrich and the CSEA
As to Nehrich, the plaintiffs allege that he provided the Town officials with the information about which Town employees were active in the Republican party. (Compl. PP 59-60.) Plaintiffs further allege that Nehrich personally met with these officials to select which positions would be eliminated based upon the political activities of the individual holding that position. (Compl. P 61.) It is important to note that the intracorporate immunity doctrine does not apply to Nehrich although plaintiffs state that Nehrich is an employee of the Town. (Compl. at P 25.) None of the allegations regarding Nehrich pertain to his duties as an employee of the Town. For example, Nehrich's alleged presence at the policy meetings had no relation to his duties as an employee of the Town. This is unlike Middlemark, Biamonte, and Nedelka, all of whom were policymaking officials whose presence at a meeting to develop a proposed budget plan would be within the normal course of their duties as Town employees. Therefore, plaintiffs adequately allege Nehrich's involvement, as an individual, in a conspiracy with the Town under § 1985.
However, with respect to the claim against Nehrich as president of the CSEA local, there is no allegation whatsoever which indicates a basis to assert that Nehrich's involvement in this alleged conspiracy was done in his official capacity as a representative of the CSEA. See Scott, 463 U.S. at 829 (requirement of act in furtherance of conspiracy). Nothing in the allegations against Nehrich indicate that his acts were done in furtherance of a policy of the CSEA or with the approval of the CSEA. In essence, the alleged acts by Nehrich are ultra vires to his official duties as collective bargaining representative of the civil service employees of the Town of North Hempstead. The claim against the CSEA is therefore dismissed with leave to replead.
3. Friends of Ben Zwirn and Peckelis
With respect to the § 1985 claim against Friends and Peckelis the plaintiffs fail to allege any affirmative act in furtherance of this alleged conspiracy which would support the claim. Although the plaintiffs allege that Friends, by Peckelis, was a "repository of campaign support" (Compl. at P 89), the Court finds in this statement nothing more than a description of the legitimate fundamental purpose of this election campaign committee. This conclusory statement does not suffice as an affirmative act, nor is there any allegation of a causal connection between this function of Friends and the furtherance of the alleged conspiracy. Therefore, the § 1985 against Friends and Peckelis are dismissed with prejudice. See Scott, 463 U.S. at 829 (requirement of act in furtherance of conspiracy).
Therefore, the § 1985(3) conspiracy claim of the sixth count of the complaint is sustained against the Town of North Hempstead and Nehrich, in his individual capacity. The § 1985(3) claim against all other defendants is dismissed with prejudice except that the plaintiffs are granted leave to replead against the proper CSEA entity. The Court notes that at this stage, the remaining conspiracy Civil Rights claims under 42 U.S.C. §§ 1983 and 1985(3) are duplicative with respect to the defendants named and the underlying constitutional violations. Although the Court makes no ruling at this time, should discovery reveal no distinction between the claims, it may be appropriate to dismiss or withdraw one of the claims. See Ferran v. Town of Nassau, 11 F.3d 21, 23 (2d Cir. 1993), cert. denied, 130 L. Ed. 2d 489, 115 S. Ct. 572 (1994); Marroni v. Sykes, 1992 U.S. Dist. LEXIS 9155, 1992 WL 151744 at *3 (E.D. Pa. 1992).
III. RICO CAUSES OF ACTION
The plaintiffs allege three distinct RICO causes of action, under 18 U.S.C. § 1962(b),(c) and (d), based upon predicate acts involving mail fraud under 18 U.S.C. § 1341 (Compl. at P 95) and wire fraud under 18 U.S.C. § 1343 (Compl. at P 100). The plaintiffs also assert acts of extortion and conspiracy. The first cause of action of the complaint alleges an enterprise under 18 U.S.C. § 1962(d) for the purpose of
undermining and weakening the Republican Party in the TOWN, by terminating through illegal means, TOWN employees who are active Republican Party members solely because of their political affiliation and in coercing and intimidating Republican TOWN employees into disavowing their loyalties or participation in Republican political matters.
(Compl. at P 75.) The second cause of action alleges an enterprise under 18 U.S.C. § 1962(b) for the purpose of "acquiring dominant interest and control of the TOWN." (Compl. at P 105.) The third RICO cause of action conclusorily alleges under 18 U.S.C. § 1962(c) that the defendants all conducted an enterprise which engaged in a pattern of racketeering activity. (Compl. at P 108.)
A civil RICO plaintiff must show (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985). With regard to the pattern element of racketeering activity, the Supreme Court held that in enacting RICO, Congress was concerned with "long-term criminal conduct." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 242, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989). Thus in establishing a pattern, as a threshold issue, the plaintiff must allege a relationship between the predicates, and that the predicates amount to or pose a threat of continued criminal activity. Id. at 239 (emphasis in original). The Court finds that the plaintiffs' RICO causes of action must be dismissed in that the complaint fails to adequately allege a RICO enterprise. In addition, the RICO counts fail to adequately allege the pattern requirement of continuing criminal activity.
A. MUNICIPALITY AS AN "ENTERPRISE "
Plaintiffs allege that the "enterprise" comprised the Town, members of the Town board, and other Town employees. (Compl. at P 75.) The complaint also conclusorily states that all other defendants are "associated-in-fact." (Compl. at P 74.) The Municipal defendants move to dismiss the RICO claims against the Town asserting that it is incapable of forming the criminal intent essential to the predicate acts. (Mun. Def. Mem. of Law at 13-14.) This Court finds the defendants' position persuasive and thus dismisses the RICO causes of action against the Town and the Town employees in their official capacities.
Municipal entities may not be held civilly liable under RICO. See Nu-Life Constr. Corp. v. Board of Educ., 779 F. Supp. 248, 251 (E.D.N.Y. 1991).
The predicate acts which must constitute a pattern, as set forth in 18 U.S.C. § 1961(1), all require criminal intent on the part of the person accused of committing them; the plaintiff necessarily bears the burden of showing that the defendant possessed the requisite mens rea. Sedima, 473 U.S. at 496; Nu-Life, 779 F. Supp. at 251. A municipality is incapable of forming the criminal intent necessary to establish the underlying predicate acts and thus may not be held liable under civil RICO. Nu-Life, 779 F. Supp. at 251 (municipal entity incapable of forming criminal intent) (citing In re Citisource, Inc. Sec. Litig., 694 F. Supp. 1069, 1079 (S.D.N.Y. 1988)); O & K Trojan, Inc. v. Municipal Contractors & Equip. Corp., 751 F. Supp. 431, 434 (S.D.N.Y. 1990) (same); North Star Contracting Corp. v. Long Island R.R. Co., 723 F. Supp. 902, 908 (E.D.N.Y. 1989) (same); see also Lancaster Community Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 404 (9th Cir. 1991) (government entities incapable of forming malicious intent), cert. denied, 502 U.S. 1094, 117 L. Ed. 2d 414, 112 S. Ct. 1168 (1992); Dammon v. Folse, 846 F. Supp. 36 (E.D. La. 1994); County of Oakland by Kuhn v. City of Detroit, 784 F. Supp. 1275 (E.D. Mich. 1992); Bonsall Village, Inc. v. Patterson, 1990 WL 139383 (E.D. Pa. 1990); Albanese v. City Federal Savings & Loan Ass'n, 710 F. Supp. 563, 568-69 (D.N.J. 1989).
Moreover, mens rea on the part of the agents of the municipality may not be imputed to the municipality through the doctrine of respondeat superior. See Landry v. Air Line Pilots Ass'n Intern. AFL-CIO, 901 F.2d 404, 425 (5th Cir.); cert. denied, 498 U.S. 895, 112 L. Ed. 2d 203, 111 S. Ct. 244 (1990); Nu-Life, 779 F. Supp. at 251; In re Citisource, 694 F. Supp. at 1080. Therefore, since the municipality cannot be held liable for the acts of its agents, the Town employees, in their official capacity, cannot be held liable under RICO. See Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 361, 116 L. Ed. 2d 301 (1991) (suit against state official in official capacity should be treated as suit against state); Brandon v. Holt, 469 U.S. 464, 471, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985) (official capacity claim is claim against the office, not the individual). As a result the RICO claims against the Municipal defendants in their official capacities must also be dismissed.
Although this Court need not reach the issue, other courts have dismissed similar claims upon the ground that the mandatory treble damages provisions of RICO cannot properly be imposed upon municipalities. See Genty v. Resolution Trust Corp., 937 F.2d 899, 910 (3d Cir. 1991); Dammon v. Folse, 846 F. Supp. 36, 38-39 (E.D. La. 1994); Massey v. City of Oklahoma City, 643 F. Supp. 81 (W.D. Okla. 1986). However, as noted by Judge Spatt in Nu-Life, 779 F. Supp. at 252, a determination on this alternate ground requires an authoritative resolution of the question of whether civil RICO treble damages are "punitive" "remedial" or both, in nature. Such analysis is neither necessary nor required here.
B. INDIVIDUAL CAPACITY IMMUNITY
The RICO causes of action are based upon the acts of these governmental officials which impacted the plaintiffs. Therefore the RICO claim rests upon the question of whether the enterprise concept can be sustained against the Town employees in their individual capacities. The Municipal defendants cite to Thillens, Inc. v. Community Currency Exch. Ass'n of Illinois, Inc., 729 F.2d 1128, 1131 (7th Cir.), cert. dismissed, 469 U.S. 976, 105 S. Ct. 375, 83 L. Ed. 2d 342 (1984), for the proposition that they are entitled to legislative immunity with respect to the RICO claims. (Mun. Defs. Mem. of Law at 21.) The assertion of immunity defenses by government officials in the context of civil RICO is unique, because it is rare that such officers are named individually as defendants in RICO actions.
In Thillens, state legislators were accused of improperly enacting regulations as part of a corrupt conspiracy to injure the plaintiff's business. 729 F.2d at 1129. The plaintiff brought suit under RICO, 42 U.S.C. § 1983, anti-trust provisions, and common-law tort. Id. Although the defendants included state legislators, the Thillens court relied upon the defendant's common-law legislative immunity because the allegations were directed at the official's legitimate legislative functions. Id. This Court acknowledges that the Thillens defendants were state legislators, entitled to assert sovereign immunity under the 11th Amendment, unlike local or municipal legislators, whose only immunity defenses are extensions of the common-law doctrine of official immunity. Nevertheless, the Thillens court relied solely on the defendants' right to common-law based official (legislative) immunity, and did not rely on the defendants' 11th Amendment sovereign immunity. Id. The Thillens court dismissed all causes of action, including the civil RICO action, against the legislators. The court stated:
Establishing the defendants' role in the conspiracy naturally would require investigation into activities cloaked with immunity, including study of staff activities and motivations for acts of the defendants and their staffs geared toward enacting the challenged laws. Official immunity was designed to prevent a plaintiff from using a civil action to peer so deeply into the legislative process.
729 F.2d at 1131.
Plaintiffs' complaint also alleges wrongdoing directly involving purely legislative functions. As part of the general fact basis of the complaint, the plaintiffs assert that the defendants
scheme and conspiracy to defraud was implemented under the guise of large-scale budget cuts and a desire to downsize government, when, in fact, said intention was false and fraudulent and served as a means to camouflage the true intentions of defendants which was to eliminate TOWN employees who they felt were previously employed under Republican administrations, and who were active members of the Republican Party . . .